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THE DRY DECADE

Books by
CHARLES MERZ

The Great American Band Wagon

And Then Came Ford

The Dry Decade

THE DRY DECADE

BY
CHARLES MERZ

MCMXXXI
DOUBLEDAY, DoRAN & COMPANY, INC,

Garden City, New York

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COFYItJOHT,

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ALL RiaMTft fcfc

RST ffDJTIOM

TO WALTER LIFFMANN

Contents

L Prohibition Before the War /

II. The Adoption of the Eighteenth Amendment 25

IIL The Law in Action 51

IV, The Neutrality of Congress 75

V. The Search for a Formula xoi

VL The Pattern of Enforcement 130

VIL The Battle of Propaganda 158

VIIL The Deadlock of 1926 183

IX. The Appearance of Organized Opposition 208

X. The Hoover Program 233

XL The Appeal to the States 257

XIL The Position in 1930 282

Appendices 37

Index 337

THE DRY DECADE

CHAPTER I
Prohibition Before the War

IN ATIONAL prohibition by constitutional amendment,
the golden dream of thousands of devoted men and
women, became effective at (midnight on January 16,
1920) The night was quiet in New York. A few hotels
draped their tables in black cloths in deference to the
drooping spirits of Broadway, but no special ceremony
marked the passing of the old order. In Washington
a group of the chief prohibition leaders, including Mr.
Bryan, Mr. Wheeler, Mr. Volstead, and Mr. Sheppard,
gathered at the First Congregational Church to watch
at the stroke of twelve for the supreme consummation
of a cause to which they had given years of service. In
Norfolk, Virginia, Mr. Billy Sunday preached the fu
neral service of John Barleycorn. The deceased arrived in
a coffin twenty feet in length, brought to the doors of
the tabernacle by a span of horses and trailed by a
dejected Devil. "Good-bye, John," cried Mr. Sunday.
"You were God's worst enemy. You were Hell's best
friend, I hate you with a perfect hatred." 1
" This was the start of a new experiment in the United
States. By what sequence of events it had come about,
by whose command New York had lost control of one of
its own customs, how authoritatively the leaders who
J New York Timts, January 17, 1920.

2 The Dry Decade

gathered at this church in Washington represented the
opinion of the nation, why Mr. Sunday was able on a
night in January, 1920, to welcome a new order which
had seemed impossibly remote ten years before, all
this is still a subject of unending controversy.

The long story of the early prohibition movement in
the United States lies outside the purpose of this book,
but a short summary of its adventures throws some light
on the situation we have reached to-day.

It has often been pointed out that the prohibition
movement in this country began not as a prohibition
movement but as a temperance movement, directed at
the task of winning converts by persuasion rather than
by law. The origin of the movement can be traced as
far back as Colonial days and followed well down into
the nineteenth century in the steady growth of a re
formist movement which had temperance as its goal
This movement never died. The old temperance socie
ties like the Washingtonians and the Sons of Temper
ance have long since lost the large authority they once
enjoyed; but temperance work is still carried on by the
churches, by many social service agencies, "and even by
those militant prohibition societies which have sunk
much of their moral fervor into the task of persuading
Congress to enforce the law.

It would be a mistake, however, to assume that
temperance rather than prohibition remained the chief
goal of the reformist movement down to our own times
and that only in comparatively recent years did there
come a sudden violent wrench away from the old meth
ods, a discarding of the old objectives, an abandonment

Prohibition Before the War 3

of the hope of temperance by moral suasion and a de
mand for abstinence by law.

So far back does this change in the major interest of
the movement date that the first great wave of pro
hibition swept the country as long ago as the 1850'$.
Between 1846 and 1855 thirteen states adopted prohibi
tion laws. Maine led the way, followed not only by
New Hampshire, Vermont, Delaware, Michigan, In
diana, Iowa, Minnesota, and Nebraska, but by such
unfamiliar converts to the cause of prohibition as Con
necticut, Rhode Island, Massachusetts, and New York.
This early wave of prohibition soon receded. Some
of the laws were declared unconstitutional by the
courts. Others were nullified by later legislation. Still
others were repealed. By 1863 the thirteen prohibition
states had shrunk to five. Four of these five seceded
later.

A second wave of prohibition began in the i88o's. It
had been twenty-five years since the crest of the first
movement, and in this quarter century no new state
had been added to the list. In 1869, however, the Pro
hibition party had been organized, and in 1824 the
Woman's Christian Temperance Union took tEe field.
To a new set of leaders the time seemed ripe for a
crusade. Once more the movement started forward. In
1880 Kansas wrote prohibition into its Constitution,
something that no state had ever done before. By 1890
North and South Dakota had adopted prohibition laws.
Iowa and Rhode Island, having repealed their earlier
legislation, were now experimenting with prohibition for
a second time.

Once more the movement ebbed. Out of the legisla
tive battles of the i88o's three states emerged with
prohibition laws by 1905. These three were Kansas,

4 The Dry Decade

Maine, and North Dakota. Meantime, however, a good
deal of laboratory work had been carried on in other
methods of regulating the traffic in intoxicating liquors.
South Carolina had tried a dispensary system borrowed
from northern Europe. Pennsylvania, Missouri, and
Illinois experimented with high-license plans. Massa
chusetts tried a prohibition law, then a license system,
then prohibition of everything except malt liquors,
and then another license plan. Other states experimented
with low-license, with exemption of wines and beer
from prohibition laws, and with local option legislation
under which counties, towns, and villages could outlaw
the saloon.

How well or how badly these various systems worked,
how well they were liked, why any of them failed, and
whether this failure was due to factors inherent in the
plan itself, to a poor start, or to maladministration : all
this has been the subject of a vast controversy, charac
terized by a great uncertainty of fact. It is enough here
to note that it was out of this decade of experiment that
the third great wave of prohibition started. Georgia led
the way in 1907. In rapid succession Oklahoma, Missis
sippi, North Carolina, Tennessee, and West Virginia
fell into line.

All of these states, it will be noted, lay south of the
Ohio and Potomac. All of them were primarily agricul
tural states, scarcely touched by the industrial revolu
tion which had so thoroughly changed the interests and
the point of view of many Northern states in the long
half century since the first wave of prohibition swept
the country.

Nevertheless, it was clear that after a long interlude
the list of prohibition states had once more begun to
gain. Six states had been added rapidly in six years*

Prohibition Before the War 5

time. There was reason to believe, in 1913, that a third
wave of prohibition was plainly on the rise.

If there was any single factor which had rescued the
prohibition movement from its own inertia in the past
and now given it a fresh start forward toward its goal,
it seems fair to say that this factor was the attitude
displayed toward all this agitation by the brewers and
distillers.

These gentlemen had a large stake in the controversy
over liquor which had been in progress now for more
than fifty years. They had a stake, by 1913, which may
conservatively be estimated as worth a billion dollars.
They wished to preserve this stake, and they chose a
method of preserving it which has frequently been tried
by organizations under fire and very often failed: they
stood pat in the face of an opposition whose strength
they underestimated and scorned all talk of compro
mise.

There was never a moment in the history of these
years when the brewers could not have reformed the in
stitution which was the chief point of attack in the cam
paign against their ves.ted interests made by the pro
hibition movement. This institution was the saloon. The
power of the brewers over the saloon was absolute. They
controlled it under mortgage bonds and under their
power to shut off its supply. They could have changed
the saloon, or even have destroyed it, if they had wished
to act.

Later on, when it was too late to profit them, the
brewers showed themselves aware of the power which
they held and regretful that they had made no more

6 The Dry Decade

effective use of it. This was in 1916, when members of
the United States Brewers' Association announced
through advertisements in the press that they lamented
the "false mental association" which had coupled the
brewers with the worst of the saloons, confessed that for
this association they themselves were in large part
responsible, and offered to show the country, if it would
give them time, that they were ready to reform the
saloon and to promote temperance "real temperance,
which means sobriety and moderation; not prohibition,
which has proved a fallacy and a failure/' 2

It is idle to speculate on what might have' happened
had this announcement been made in 1906 instead of
1916 and had it been followed by action taken in good
faith. Reformation by the brewers and distillers of their
own trade might have averted national prohibition. It is
an academic point. There is no way of telling now. The
question was not tested. Apparently convinced that
the gods were on the side of a billion dollars, wherever
it was found, and that the prohibition movement would
once more peter out, the brewers and distillers refused
all reformation and all compromise. They might have
attempted to protect their business by putting it in
order. They preferred to argue that there was nothing
in their business which needed to be put in order and
to spend their time and effort creating an elaborate sys
tem of protection which toppled to the ground.

The history of this effort was partially revealed by
an investigation made by a committee of the Senate in
the fall of 1918. The story which this investigation tells
is a story of money wasted, energy misspent, and a
system of alliances so obviously artificial that it creaked

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, ist Session, pp. 1032-1033*

Prohibition Before the War 7

at every joint when it was subjected to high pres
sure.

By their own admission the brewers dumped money
into various states to win elections for friends who
promptly failed them; they financed a dummy chamber
of commerce which existed largely for the purpose of
fighting liquor legislation; they employed experts to
investigate the strategy of the prohibition movement, at
a time when the prohibition movement was shouting
its strategy from the housetops; they organized a black
list system which threatened to withhold trade from a
long list of businesses regarded as unfriendly to the
brewers' interests. 3

The Delaware, Lackawanna & Western Railroad was
on this list because it had forbidden its employees to
drink liquor. The Grasselli Chemical Company of
Cleveland was on the list because some of its officials
had given their support to a revival meeting staged by
Billy Sunday, The Heinz Pickle Company was on the
list because its president was an officer of a Sunday-
school association which had championed the cause of
prohibition. 4

This petty and capricious system of attempting to
control opinion by means of a business boycott is typ
ical of the tactics employed by an industry which mis
judged its power. 'The brewers and distillers were con
fronted by a larger problem than they knew how to
handle. Their inability to cope with it explains one
reason why the prohibition movement was able to re
cover time and again from its successive setbacks and
resume its brisk advance.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6$th Congress, pursuant to S. Res. 307.
; see also New York Times, November 21, 1918.

8 The Dry Decade

It would be a mistake to suggest that while the brew
ers temporized with a situation which grew more and
more alarming from their point of view, the prohibition
movement bowled along of its own momentum, gather
ing impetus for its third great drive from the support
which flowed to it spontaneously from distant sections
of the country.

The prohibition movement was not spontaneous and
never had been. It had in 1913, as it had always had, a
basic fund of sentiment to draw upon, in the moral
teaching of the schools, in the temperance work of the
churches, in popular disapproval of the drunkard, and
in the increasingly persuasive proof that intemperance
was a heavy handicap to modern industry. But the
task of converting this sentiment into a sustained de
mand for prohibition, rather than an appeal for tem
perance, was a task which required the expenditure of a
vast amount of money and the unrelenting efforts of
many salaried men, Mr. Wayne B. Wheeler testified
before a committee of the Senate in 1926 that in thirty
years of active labor no less than $35,000,000 had been
spent by the friends of prohibition to create and to
sustain public interest in their cause. 5

Fortunately for the friends of prohibition, there was
an organization in the field by 1913 which was capable
both of raising large sums of money and of spending
them to good advantage. This organization was the
Anti-Saloon League of America, founded at Oberlin,
Ohio, in^g^ approximately at the time when the

5 Testimony before the Senate Campaign Fund Investigating
Committee, June 23, 1926.

Prohibition Before the War 9

second of the three great waves of prohibition was be
ginning to recede.

The founders of this movement were a few men
whose interest in prohibition had brought them to
gether, shortly before this time, in an effort to obtain
the adoption of a local option law. In this venture they
had had the support of the local churches, and with the
churches the Anti-Saloon League was closely identified
from the day of its foundation.

The original meeting to organize the League was held
in the First Congregational Church at Oberlin on June
4, 1893. The first affiliation which substantially in
creased the membership of the new society was a merger
with a church temperance alliance effected in this same
year. The call for a convention in 1895 to establish the
society on a national scale was issued after a conference
of influential churchmen. When this convention as
sembled in Washington it was at the Calvary Baptist
Church, with delegates present representing not only
the more important temperance organizations but vari
ous church bodies.

It was under church auspices that the League was
born and to the churches that it turned for patronage.
As Mr. Ernest H. Cherrington, secretary of the national
executive committee of the League, has pointed out:
"The movement was dependent upon the church, first
of all, for financial support. It was also dependent upon
the church for the necessary influence and power to
turn the tide along non-partisan lines in the election of
members of the legislatures favorable to temperance
legislation and in the election, as well, of public officials
who would enforce the law." 6

6 Ernest H. Cherrington, History of the Anti-Saloon League,
p. 61.

io The Dry Decade

The churches were not won easily. A venerable tradi
tion against church intervention in politics raised certain
stubborn doubts. As Mr. Cherrington says, "many
years of difficult and persistent endeavor were necessary
to line up the church on the right side of this new
movement/' 7 By 1913, however, the League had won
its fight. A long list of churches had rallied to its support.
Whatever doubts they may have had concerning church
activity in politics had long since capitulated to their
burning enthusiasm for the achievement of an imme
diate reform.

Armed with the powerful support of the churches,
the Anti-Saloon League had expanded rapidly. Its de
clared interest lay in political action to destroy the
liquor traffic, primarily, as its name indicated, through
the abolition of the saloon. Its method of achieving this
result consisted of an omni-partisan plan of endorsing
candidates which permitted the dry voter to vote dry
without bolting his own party. The driving force behind
this plan was a tireless campaign of propaganda. The
extent of this propaganda, and the size of the task which
it reflected, may be judged from figures covering a
period beginning shortly before this time and running
a few years later. Between October, 1909, and January,.
1923, the Anti-Saloon League press at Westerville, Ohio,
turned out 114,675,431 leaflets, 1,925,463 books,
2,322,053 placards, 5,271,715 pamphlets, 21,553,032
miscellaneous items, and 157,314,642 copies of weekly
and monthly magazines. 8

Year after year the presses spun with the vast litera
ture of the prohibition movement, carrying into remote

7 Ernest H. Cherrington, History of the Anti-Saloon League,
p. 62.

8 Peter Odegard, Pressure Politics, p. 75.

Prohibition Before the War n

corners of the country fresh appeals to friends and chal
lenges to foes, arguing fresh reasons for the adoption of
new laws, seizing upon every incident which might be
turned to the profit of the cause, and meeting the propa
ganda of the brewers with a counter-propaganda no
less partisan but far more ably handled.

The task was almost endless. For once an election was
over, a large part of the public promptly lost its interest
and the campaign had to start afresh. Mr. Wheeler
himself once testified that even in 1917, following the
most critical election in the history of the League, and
at a time when the crusading spirit of this movement
had theoretically reached its height, the problem which
faced the Anti-Saloon League was how "to maintain
public interest in prohibition until the new Congress
should convene." 9

In 1913 the Anti-Saloon League had been at work for
twenty years. It was battle-scarred with valuable ex
perience. It had lifted the list of prohibition states from
three to nine. It had added to these states so many no-
license counties that officials of the League were already
claiming "two thirds of the territory of the country is
now dry." 10 What had happened, meantime, to the li
quor traffic ?

It is one of the least noticed but most interesting
facts in the story of the prohibition movement that the
consumption of intoxicating liquor increased steadily
despite the enactment of new prohibition laws. It is not

9 New York Times, March 30, 1926.
10 Associated Press dispatch, Columbus, Ohio, November II,

12 The Dry Decade

necessary to regard the laws as the cause of increased
drinking, but it is certain that they failed to stop ilJ
/in one respect, it is true, there had been a marked
decrease in the consumption of alcoholic liquors. In 1850
the per capita consumption of distilled spirits in this
country had been 2.24 gallons; by 1910 it had dropped
to 143 gallons. 11 This was a decrease of only a little
less than 40 per cent: convincing evidence that years
of temperance work had succeeded in checking and
reducing the use of hard liquor in the United States.,

fin all other respects, however, the figures show a
steady increase. In this same period of sixty years the
per capita consumption of wine more than doubled and
the per capita consumption of beer increased by more
than a thousand per cent. 12 The aggregate figures for all
forms of intoxicating liquor show this rising curve:

In 1850, before the first great wave of prohibition,
the per capita consumption of liquor in the United
States was 4.08 gallons a year. 13 By 1860, at the end of
the first wave of prohibition, it had increased to 6.43
gallons. By 1880, when the second prohibition wave
was getting under way, it was 8.79. In the decade of the
'eighties, when the second wave was at its height, it
increased to 13.20. In the decade of the 'nineties it rose
to 16.98. In the decade from 1900 to 1910, with five new
states adopting prohibition and the local option move
ment in full swing, it increased to 20.53. Finally, in the
year 1913, precisely at the time when the Anti-Saloon
League was asserting that "two thirds of the territory
of the country is now dry," it rose stubbornly to 22.80.
At this point it had multiplied by more than five the
^Statistical Abstract of the United States, 1920, p. 561.

Prohibition Before the War 13!;

figure for the year 1850, before all this agitation
started.

f There were two ways in which these steadily rising
figures might be interpreted. Either they meant that by
1913 one third of the territory of the country was con
suming five times the amount of liquor consumed by
the whole country sixty years before; or else they sug
gested that liquor from wet states was still flowing into
dry states and dry counties from across their borders,
with their approval or against their wilL

Since the second of these assumptions was the only
credible one, the friends of prohibition turned it into a
ready argument for action by the federal government.
The failure of local laws to reduce the consumption of
liquor did not destroy their faith in legislation; it en
larged it. As Senator Borah once summarized from
his personal observation the convictions of the prohibi
tion leaders:

"Having lived in a dry state, and believing, as I do,
that the people have a right to prohibition if they want
it, and having seen our laws broken down and trampled
under foot by powers outside of the state, I became con
vinced that so long as one state could ship into or
through another state it would be utterly impossible for
the state to protect itself unless the national govern*
ment, which had that power, also declared that pol-

Viewed in this light, the agitation for national action
was not an effort to extend the demonstrated advantages
of state-wide prohibition to the country as a whole. It
was an effort to win for the dry states those advantages,
not yet demonstrated, which the friends of prohibition

"Debate at Boston with Dr. Nicholas Murray Butler, New
York Times, April 8, 1927-

14 The Dry Decade

thought that prohibition could be made to bring, once
state laws were no longer "trampled under foot" by
interests outside of their own borders.

The action designed to protect the dry states in the
exercise of sovereignty over their own affairs was the
adoption of the Webb-Kenyon Law. Contrary to much
that is said of the law to-day, this measure was not in
tended to prevent entirely the shipment of liquor from
wet states into states with prohibition laws. It did not
go that far. It merely prohibited such shipments as
were "in violation of" state legislation. Some of the
dry states legalized importation under certain restric
tions. It was not the purpose of the new law to attempt
to alter these restrictions//

/The Webb-Kenyon Law was adopted by Congress in
February, 1913, by large majorities in both Houses,
many wet members agreeing that it was only fair to
give the dry states the protection for which they asked.
To the surprise of Congress, however, the bill was vetoed
by President Taft, on the ground that it was unconsti
tutional and "clearly violated the commerce clause of
our fundamental law." 15 The President had been advised
to this effect by his Attorney General, Mr. George W.
Wickersham. 16 Congress disagreed with him. Both
Houses promptly passed the bill over the President's
veto.

It is clear that at this point an interesting experiment
began: an experiment in discovering whether the au-

l5 Congressional Record, 62d Congress, 3d Session, pp. 4291-
4292.

., pp. 4292-4296.

Prohibition Before the War 15

thority of federal law, properly backed by federal en
forcement, could actually have protected the dry states
against invasion, in so far as each state, following its
own standards, wished to be protected against invasion.

The friends of constitutional prohibition insist to-day
that this experiment failed; that the wet states con
tinued to tyrannize the dry states; and that constitu
tional prohibition on a national scale was the logical
and inevitable answer.

If this is true, then the decision was reached in a re
markably short time. The Webb-Kenyon Law was en
acted in February, 1913. In November of this same year,
before the Webb-Kenyon Law was nine months old
and before any funds had been appropriated by the
federal government for the purpose of enforcing it, the
Anti-Saloon League suddenly switched from the state
law plan which had been its goal for twenty years and
for the first time in its history demanded a constitu
tional amendment v f

The meeting at which this decision was reached was the
" Jubilee Convention" of the League, held at Columbus,
Ohio, in the second week of November, 1913. It was a
memorable meeting, opening in the hush of an expected
call to arms and reaching its decision in an outburst of
enthusiasm.

Plans were laid at once for a demonstration at the
Capitol. Four weeks later, on December loth, a proces
sion of four thousand men and women marched down
Pennsylvania Avenue, while the street crowds smiled,
white streamers fluttered from the lapels of winter over
coats, and the band played "Onward Christian Sol
diers/' On this same December loth Senator Sheppard

16 The Dry Decade

introduced his resolution for a constitutional amend
ment.

With the fresh impetus lent by the setting of a new
and bolder goal, the prohibition movement now leapt
forward. Mr. Wheeler has described the burst of energy
which followed the 1913 demonstration. Fifty thousand
speakers were sent into the Congressional elections of
1914. Tons of new literature were turned out at Wester-
ville. "It was no uncommon thing for carloads of
printed material to roll out in one day for the front. . . .
Under the terrific pace our finances expanded. . . .
Our expenses gradually increased until they reached
the greatest figure in our history, about $2,500,000
a year. . . . We went into every Congressional district
where there was a chance to elect a dry and waged as
strong a fight as candidates have ever seen." 17

The results of this activity were promptly apparent
both at the Capitol and in the states.

At the Capitol, a resolution for a constitutional
amendment similar to Senator Sheppard's resolution
was brought before the House of Representatives one
month after the conclusion of the campaign which Mr.
Wheeler has described. It received a vote of 197 in favor
to 190 opposed: less than the two thirds vote required,
but a clear majority. 18

In the states the movement for more legislation swept
ahead with the same sudden burst of energy which had
marked the progress of the first great prohibition wave
in the middle of the previous century, when four states
adopted laws in 1852, one in 1853, one in 1854, and six
in 1855. Now, in this third great wave, five states
adopted laws in 1914, five in 1915, and four in 1916
17 New York Times, March 29, 1926.
^Congressional Record, 6sd Congress, jd Session, p. 616.

Prohibition Before the War 17

bringing the list of prohibition states to twenty-three.
In this same year, the year before the war, the friends
of prohibition began another drive for the election of a
Congress committed to national action. This was the
election of 1916; and if the Anti-Saloon League and its
allied organizations had thrown themselves with fervor
into the Congressional election two years before, they
now outmatched their own best efforts. "All the
energy we put into the 1914 campaign boiled and
bubbled with hotter fire," wrote Mr. Wheeler, a dec
ade later. 19 "We laid down such a barrage as can
didates for Congress had never seen before and such
as they will, in all likelihood, not see again for years to

come."

This was the election which sent to Washington the
Congress destined so shortly and to a large part of the
country so unexpectedly to adopt the Eighteenth
Amendment and send it to the states. There were
thousands of untroubled people living in Eastern cities
who refused to believe that prohibition was an issue.

If we stop at this point to recapitulate, we can meas
ure the situation as it shaped itself on the first of April,
1917, and throw some light on the validity of certain
current dogmas.

i. There is the dogma, popular with many wets,
that national prohibition was foisted on the country
without the slightest semblance of a warning. It is worth
remembering here that a majority of the House of
Representatives had voted in favor of a constitutional
amendment as early as December, 1914. To the most
19 New York Times* March 30, 1926.

i8 The Dry Decade

cocksure wet this should have been ample notice of the
possibility that lay ahead. The opponents of prohibition
needed to hold only one third of the House in order
to block the adoption of a constitutional amendment.
As events turned out, they had three years in which to
attempt to elect and to organize a bloc of 146 votes.
They neglected this opportunity and continued to
regard prohibition as an empty threat.

2. There is a second dogma of the wets that in those
states which adopted prohibition before the war the
decision was reached by the arbitrary action of the
state legislatures and not by the free choice of the elec
torate itself. The truth is more nearly the reverse of this.
In only nine states was prohibition adopted solely by
action of the legislature. 20 In all of the others there was a
direct consultation of the electorate and a direct choice
at the polls, either through the initiative and referendum
or when the legislature submitted the question to a
popular decision.

^3. There is a third dogma of the wets, inconsistent
with the previous dogma, that "the woman vote" was
in large part responsible for prohibition. There is little
basis for this theory. On the final question of ratifying
the Eighteenth Amendment no women voted (and no
men) except in one state, Ohio. On the question of
state laws, women voted in only seven states which
adopted prohibition before the war. These seven were
Arizona, Colorado, Utah, Idaho, Montana, Oregon, and
Washington. In all other states prohibition came first
and woman suffrage afterward^

4, Meantime, there are various dogmas of the drys.
There is the dogma that even before the war prohibition
had won national support and not merely sectional sup-
20 Cf. Appendix A.

Prohibition Before the War 19

port. Twenty-three states had adopted prohibition
laws by the end of 1916. Three more were added in the
first few months of 1917, bringing the list to twenty-six.
Where were these states placed ? Fourteen were west of
the Mississippi. Eight were south of the Ohio and
Potomac. Two (Maine and New Hampshire) were in
the northern and rural half of New England. In the belt
of thirteen thickly populated industrial states reaching
from Massachusetts on the east to Missouri on the west,
prohibition had won only Michigan and Indiana. In
Indiana the law had been adopted by the legislature
without a popular vote. In Michigan there had been
a referendum. The one large city in the state, Detroit,
had voted wet. 21 The rural sections had snowed it under.
In 1917 prohibition was still a method favored prin
cipally in the agricultural states of the West and South.
Its gains in the East and North were relatively un
important.

5. There is the dogma of the drys that in those
states which had adopted prohibition by popular vote
an overwhelming majority of the electorate had shown
itself in favor of this action. A list of the state votes will
be found in Appendix A. It shows that 1,967,337 people
voted for prohibition in these states, as against 1,437,402
opposed. These figures are fairly close. For every nine
teen people who wanted prohibition, fourteen opposed
it. The total vote is very small: so small that all of
the state prohibition laws which were enacted in this
country prior to the war were enacted by the affirmative
votes of less than 4 per cent of the adult population of
the country.

6, Finally, and from the point of view of the present
situation most significant, there is the dogma of the

^Michigan Manual) 1917, p. 483,

2O The Dry Decade

drys that the (ultimate adoption of the Eighteenth
Amendment was definitely foreshadowed by the adop
tion of prohibition in twenty-six states before the war,
and that the Eighteenth Amendment was merely a
crowning achievement which followed logically and
inevitably from this earlier legislation.

The weakness of this dogma lies in its assumption
that all twenty-six states had adopted a system of
prohibition comparable with the system to be estab
lished later by the Eighteenth Amendment: in other
words, that they had chosen to be bone dry. This is a
misleading theory*;

It is true that'in February, 1917, two months before
the United States entered the war, Congress adopted
i the Reed bone-dry amendment: a drastic measure un
expectedly proposed by a bitter enemy of prohibition
rather than a friend, reinforcing the Webb-Kenyon Law
with a new law forbidding interstate shipment of in
toxicating beverages into any state which prohibited
manufacture and sale, whether or not it also prohibited
importation. This was a fiat from Washington, however,
and not a decision by the states themselves. A large
number of the dry states had never chosen to be bone-
dry. They had chosen, on the contrary, to prescribe a
thoroughly legal means of obtaining and using in
toxicating liquor. On this point the authoritative com
pilation of state laws assembled by Mr. Wheeler and
published under the auspices of the Anti-Saloon
League 22 leaves no room for doubt.

Alabama is one of the states always listed as dry
before the war. But the Alabama law provided (Section
3a) that any citizen might legally import two quarts of

^Wayne B. Wheeler, Federal and State Laws Relating to In
toxicating Liquor y second edition, May, 1918.

Prohibition Before the War 21

distilled spirits or two gallons of wine or five gallons of
beer every fifteen days' if he so desired. 23

Virginia was another of the dry states. But the
Virginia law provided (Section 39) that once in every
thirty days "one quart of distilled spirits or three
gallons of beer or one gallon of wine may be brought to
any person not a student at a university, college or any
other school, nor a minor, nor a female (not the head of
a family) for his own use/' 24

Indiana was a dry state; but its prohibition law
denied (in Section 5) any intention to interfere with the
domestic manufacture of wine, "nor shall this act be-
construed to prohibit a person from giving intoxicating
liquor to a guest in his own home." 25

Michigan was a dry state. It had written prohibition
into its Constitution. Under Article XV "the manufac
ture, sale, keeping for sale, giving away, bartering or
furnishing" of any form of intoxicating liquor was
"prohibited forever." 26 This article, however, said
nothing to prohibit personal importation of liquor for
personal use. This privilege remained intact.

Maine, New Hampshire, Iowa, and North Dakota
were dry states; but their laws, like Michigan's, said
nothing to prohibit personal importation of liquor for
personal use. 27

Mississippi, North Carolina, West Virginia, Ten
nessee, and South Carolina were all dry states. But the
Mississippi law (Section 12) permitted the manufac-

^Wayne B. Wheeler, Federal and State Laws Relating to In
toxicating Liquor, second edition, May, 1918, p. 93.
*IUd., p. 766.
Ibid., p. 194.

p. 49.
., pp. 274, 416-430, 206, 507-509.

22 The Dry Decade

ture of home-made wine. 28 The North Carolina law
(Section 3) legalized the importation of one quart of
spirits or five gallons of beer every fifteen days. 29 The
West Virginia law (Section 4) permitted the manu
facture of wine for personal use and (Section 31) the
importation of one quart of liquor every thirty days. 30
The Tennessee law permitted manufacture for personal
use. 31 The South Carolina law, authorizing importation
of one quart of liquor every thirty days on the assertion
of the importer that "the same is desired for medicinal
purposes," legalized the possession of such liquor on con-

\dition (Section 15) that it was not stored up in "any un
usual amount or in any unusual way." 32
' Mr. Wheeler's compilation makes it clear, in fact, that

Awhile there were many townships and counties through
out the country which had adopted some form of
prohibition under local option, and while there were
many states which had adopted some form of prohibi
tion on a state-wide basis, there were only thirteen

jstates before the war which had sought to anticipate on
a state-wide basis the drastic bone-dry legislation of the
Eighteenth Amendment.

These states were Arizona, Arkansas, Colorado,
Georgia, Idaho, Kansas, Montana, Nebraska, Okla
homa, Oregon, South Dakota, Utah, and Washington,
all in the South and West.

The total area of these states was 1,119,555 square
miles, or 36.9 per cent of the area of the country.

28 Wayne B. Wheeler, Federal and State Laws Relating to In
toxicating Liquor, second edition, May, 1918, p. 371.
Itid., p. 473.
* Q Ibid., pp. 806, 817.
3l lbid., pp, 632-634.
pp. 570-571.

Prohibition Before the War 23

Their total population in 1910 was 13,200,907, or
14.3 per cent of the population of the country.

These thirteen states covered more than a third
of the territory of the United States but held only one
seventh of its people.

On the eve of the war, then, the situation may be
summarized as follows :

A large number of states had adopted prohibition
laws, but only thirteen states had adopted bone-dry
laws. Local option was still the established principle in
most of the populous industrial states. In many other
states, theoretically dry, the adoption of prohibition
had not been intended absolutely to prohibit the pur
chase or the use of intoxicating liquors but rather to
abolish the saloon and to place the traffic under rigid
supervision. Some of these states permitted importation
in limited amounts, until the Reed Amendment forbade
such importation in February, 1917. Some permitted
importation in limited percentages. Some permitted
home manufacture in certain forms. Some drew a
distinction between men and women as purchasers of
liquor. In each case the methods and the penalties of
prohibition varied according to local customs, local
standards and local taste.

Meantime, ignoring these actual and potential varia
tions in local theory, there was the proposal militantly
advanced by the Anti-Saloon League for a single rigid
standard : a standard requiring absolute and compulsory
prohibition for the entire nation.

These two plans were fundamentally, dissimilar in
philosophy and in method. One plan rested on local ini
tiative; the other on centralized authority. One plan

24 The Dry Decade

was loosely shaped to take account of local prejudice;
the other compromised with nothing. Yet both plans,
in 1917, were plainly gaining ground.

In the states the drift of affairs was unmistakably in
the direction of more laws rather than less laws and of
an increasingly rigid control, even in local option states,
of the whole business of manufacturing and distributing
alcoholic liquor. In Washington a majority of the House
of Representatives had voted in favor of a constitu
tional amendment in December, 1914, and the Anti-
Saloon League was now ready to predict that on the
next test of strength the plan for constitutional prohi
bition would do better.

Certainly there was much to justify the faith of the
militant prohibitionists in 1917, despite the reluctance
of the states themselves to adopt bone-dry prohibition.
The Anti-Saloon League could count on its own
effective political and religious power; on a steadily
increasing resentment in most parts of the country
against the saloon; on the reluctance of the brewers and
distillers to put their trade in order; and perhaps above
all else on the absence of any movement or any or
ganization interested in planning a moderate program
of reform.

Whether the combination of these forces would have
been powerful enough to override the old method of
state action and to obtain the adoption of the Eigh
teenth Amendment, provided no sensational new factor
had suddenly been introduced, is a question destined
never to be answered.

At this point came the war.,/

CHAPTER II
The Adoption of the Eighteenth Amendment

1 HE WAR did three things for prohibition. It central
ized authority in Washington; it stressed the importance
of saving food; and it outlawed all things German.

The first of these three changes was inevitable. The
war brushed aside the restraints normally imposed on
Congress. In rapid succession laws were adopted
authorizing the government to do things which it had
never done when the nation was at peace : seize railways,
requisition factories, take over mines, fix prices, put an
embargo on all exports, commandeer all ships, standard
ize all loaves of bread, punish all careless use of fuel,
draft men for an army, and send that army to a war in
France. With such drastic legislation as a pattern, the
proposal for one more drastic law seemed common
place. For any suddenness, any boldness, and any
severity involved in the adoption of a national pro
hibition law, a dozen persuasive precedents had been
set before the war was three months old.

In the second place it was clear from the start that
food was an important factor in the war and that great
quantities of food could be saved if an end were put to
brewing and distilling. This point was promptly em
phasized by the friends of prohibition. It was echoed by
many men in public life who were not identified with the

26 The Dry Decade

prohibition movement and never had been, but who
recognized that prohibition could be made an effective
means of saving grain.

These men included party leaders, business men,
publicists, and educators. The President of Brown
University declared that it was impossible to talk of
patriotism "while we continue to pour hundreds of
millions of bushels of grain annually into the brewer
ies." 1 Colonel Theodore Roosevelt announced himself
a prohibitionist for the duration of the war and sent a
letter to the National Temperance Board championing
the cause. 2 Mr. Herbert Hoover, at this time a volunteer
returned from Belgium, not yet appointed Food Ad
ministrator, advocated prohibition as an emergency
measure for the war, admitted that it might be difficult
to apply it "with fairness to all sides," and suggested the
appointment of a commission of investigation. 3

Inevitably the effect of a long series of such state
ments was to give momentum to the prohibition move
ment, even when these statements advocated prohibi
tion strictly for the duration of the war. So grateful
were the drys in Congress for this sudden rush of fresh
support, and so eager to start forward with their
legislation, that before the war was six weeks old they
attempted to write prohibition into a war bill that
dealt with German spies. 4 This effort failed. But when
the time came a little later to enact the Food Control
Law, the drys in Congress seized upon the unanswerable
statistics of the use of grain for alcoholic liquors and

J New York Times, June 1 8, 1917.

Associated Press dispatch, Washington, December 24, 1917.
3 New York Times, May 10 and 27, 1917,
^Congressional Record, 65th Congress, ist Session, pp. 2167,
2196, 2269.

The Adoption of the Eighteenth Amendment 27

wrote into this law a provision (Section 15) forbidding
the manufacture of distilled spirits from any form of
foodstuffs. By a fortunate coincidence this action was
taken two days before the Senate was called upon to
debate the merits of the Eighteenth Amendment*

Finally, as the third of the three chief contributions
made by the war to the cause of prohibition, there was
the obvious opportunity it afforded the drys in Congress
and outside of Congress to point out the close associa
tion between the brewers' trade and many men with
German sympathies. Time and again, throughout the
whole controversy over the adoption of the Eighteenth
Amendment, the brewers were denounced not only as
enemies of temperance but as enemies of peace. "The
liquor traffic aids those forces in our country/' insisted
Mr. Wheeler, "whose loyalty is called into question at
this hour. The liquor traffic is the strong financial sup
porter of the German-American Alliance. The purpose
of this Alliance is to secure German solidarity for the
promotion of German ideals and German Kultur and
oppose any restriction or prohibition of the liquor traffic.
Its leaders urge its members to vote only for those who
stand for Germanism and oppose prohibition/^ 6 j,

It was a happy combination, for men who "shared
Mr. Wheeler's interest in the enactment of new legisla
tion.

As the Anti-Saloon League in New York suggested:
"The spirit of service and self-sacrifice exemplified in
a wonderfully efficient and loyal staff made it possible
to take advantage of the war situation and the confusion
which He whom we serve has wrought among our
enemies/' 6

6 New York Times, November 9, 1917-

^American Issue, New York Edition, June 14, 1919.

28 The Dry Decade

With its new prestige as a war measure added to the
earlier gains which it had made while the nation was at
peace, prohibition came into Congress three months
after the declaration of war, in the form of Senator
Sheppard's resolution to add an amendment to the
Constitution of the United States.

This resolution was not the Eighteenth Amendment
as we know it now, but a shorter and simpler amend
ment favorably reported to the Senate on June nth by
the Committee on the Judiciary. The Amendment in
this shorter form consisted of two sections, one prohi
biting the "manufacture, sale or transportation'' of
intoxicating liquors for beverage purposes; the other
granting Congress " power to enforce this article by
appropriate legislation/' 7 This second article reserved
to the states their right "to enact and enforce laws
prohibiting the traffic in intoxicating liquors," but said
nothing on a point which has subsequently become the
subject of bitter controversy: namely, the question of
" concurrent " power for the states to enforce the
federal Amendment. The word "concurrent" was not
mentioned.

In this simpler form the Amendment was brought
before the Senate on July soth, debated for three hours
on that day, four hours on the next, and six hours the
day following, most of the debate on the third day be
ing limited to ten-minute speeches under a rule to
which the Senate had agreed.

Considering the dimensions of this question, the
enormous number of people whose personal conduct
' 'Congressional Record, 65th Congress, ist Session, p. 5548.

The Adoption of the Eighteenth Amendment 29

was involved, and the apparently irrevocable character
of the decision, it might be thought that thirteen hours
of debate, much of it under a ten-minute rule, failed to
provide an adequate time in which to dispose of one of
the most far-reaching resolutions in the history of the
American Republic. It is doubtful, however, whether
the result would have been appreciably different if the
Senate had talked for a longer time. A victory for
the resolution was plainly foreshadowed from the
start.

On both sides the argument consisted chiefly of a
repetition of the familiar disagreements which had
sustained this controversy for three decades, but with
one striking difference in the present case. The war had
brought a new and powerful argument to the cause of
prohibition. The friends of prohibition made the most
of it.

Figures were cited to prove that prohibition would
release large numbers of men for the army, for ship
building and munitions work. Why should the country
permit workmen to be employed in the useless manu
facture of intoxicating liquor, asked Mr. Kenyon of
Iowa, "when there is a shortage of labor in the im
portant and necessary work to carry on the war?" 8

More figures were cited to prove that by shutting off
grain from the breweries and distilleries the country
would save the equivalent of 11,000,000 loaves of bread
a day "enough to supply the bread needs of the
English, French, and Italian armies," Congress was
told, "counting the bread ration at a little less than
one pound a day per soldier" and "much more than
enough to supply the entire bread relief of Belgium." 9

^Congressional Record, 65th Congress, ist Session, p. 5639.
9 Ibid., p. 5655.

3O The Dry Decade

Why should Congress hesitate to act, asked Mr.
Thompson of Kansas, when by adopting the Amend
ment it could "contribute more to the final success and
victory in the present war" than by any other action it
could take ? 10

Whether such arguments as these changed any votes
on the floor of the Senate, or whether the die was cast
before the debate began, it is impossible to say. In
either case, in a short and somewhat unreal debate the
Senate spent a large part of its time discussing details.
Most of the real dispute, and most of the Senate's
thirteen hours, was devoted to the question of the
precise form in which the proposed Amendment should
be worded. Five attempts were made to alter the
language of the Amendment. The first four failed. The
fifth succeeded.

The first attempt was made by Senator Hardwick
of Georgia, who insisted that if the friends of prohibi
tion were sincere in their stated wish to make the
country dry they ought to be bold enough to forbid not
only the "manufacture," "sale," and "transportation"
of intoxicating liquor, but also its "use" and "pur
chase." Mr. Hardwick therefore moved to add these two
words to the resolution. He would have made the
Eighteenth Amendment less equivocal and far more
drastic, but too drastic for a cautious Senate. No such
vigorous language as this was really needed, said the
author of the resolution, Mr. Sheppard. In fact, it would
prove to be a waste of words. For once manufacture was
stopped and sale was stopped, there would be no liquor
on the market and hence no risk of use or purchase. 11

^Congressional Record, 65th Congress, 1st Session, p. 5619.
ll llid., p. 5647.

The Adoption of the Eighteenth Amendment 31

By a vote of 62 to 4 Mr. Hardwick's amendment was
defeated. The small company of four consisted of Mr.
Hardwick himself, Mr. Reed of Missouri, Mr. Brous-
sard of Louisiana, and Mr. Harding of Ohio.

The next three efforts to change the resolution were
equally unsuccessful. Two proposals were made to
exempt beer and wine from the Amendment and limit
it to hard liquor; one proposal to recompense the
brewers and distillers for damages they would suffer.
Apparently none of these proposals was offered in the
hope that it would be accepted. None was seriously
debated by the Senate. All were easily defeated.

There remained one other plan to change the res
olution. This was the proposal made by Mr. Harding
of Ohio to put a time-limit of six years on the process
of ratification by the states.

A few of the friends of prohibition, including Mr.
Borah, suspected the motive behind this plan and
vigorously denounced it. 12 Other friends, however, were
willing to accept the proposal, not because they wanted
it, but because it seemed to them a necessary compro
mise. Mr. Jones of Washington frankly admitted that
without a time-limit there was grave danger of the
whole Amendment being voted down. "A very careful
investigation has convinced some of us that a two
thirds vote is very uncertain unless this limitation is
put on." 13 This argument proved to be decisive. With
most of the drys rallying to its support, Mr. Harding's
proposal was accepted.

Ten minutes later came the final test. By the top-

^Congressional Record, 65th Congress, 1st Session, pp. 5649-
5650.

p. 5658.

32 The Dry Decade

heavy vote of 65 to 20 the Senate adopted the Amend
ment and the battle shifted to the House. 14

There occurred at this point an interlude of four and
a half months, during part of which time Congress stood
adjourned. It was on August ist that the Senate gave
its approval to Mr. Sheppard's resolution and not until
December iyth that the resolution came before the
House. Meantime the House Committee on the Judici
ary had made certain interesting changes in its text.
The six years proposed as a time-limit on ratification in
the Senate draft was changed to seven; a new provision
was added, giving the brewers a year of grace before the
Amendment took effect; the word "concurrent" made
its appearance for the first time in a totally new section
which declared: "The Congress and the several States
shall have concurrent power to enforce this article by
appropriate legislation/ 5

The first two of these three changes can be explained
by what Mr. Wheeler later called "a trade in jack-
knives." 15 The wets had asked for the year of grace;
the drys consented on condition that the six year limit
for ratification be raised to seven. On this basis the two
sides struck a bargain.

The third change raised a more important question,
though the House showed little interest in it at the
time. Casually, and without seeming to recognize that
it was sowing the seeds of a bitter controversy, the
Judiciary Committee introduced that section of the

14 The vote of the Senate on the Amendment will be found in

Appendix B.
"New York Times, March 31, 1926.

The Adoption of the Eighteenth Amendment 33

Eighteenth Amendment which gives the states "con
current" power to enforce: a section destined to be
come the subject of an endless quarrel between those
who believe that the Eighteenth Amendment places an
obligation on the states and those who deny this
theory. The House seems to have had no premonition
of the dispute which lay ahead. As casually as its com
mittee had proposed the plan, the House adopted it
without bothering to debate the question even for five
minutes.

For this alacrity it is not difficult to find an ex
planation. Here was a proposal which seemed somehow
to involve the states in the problem of enforcing the
Amendment. Any proposal directed toward this end,
promising to relieve Congress of a heavy burden, was
obviously welcome to the House. As the chairman of
the committee said: "We do not want ten thousand
federal officers, with all the expense of salaries, going
over the country enforcing these laws when the states
have their own officers to do so and are willing to do
so/' 16 The House wholeheartedly agreed. But whether
all forty-eight states would actually prove to be
"willing to do so" and what would happen if they were
not willing, the chairman of the committee did not
explain. The House asked him no questions.

As in the Senate's case, debate on the whole question
of the Amendment occupied less time than the House
frequently devotes to a revenue measure or a public
buildings bill. The Senate had given the resolution part
of three days' time. The House encompassed it at a
single session beginning at eleven in the morning and
lasting until six at night.

Much of the debate, as in the Senate's case, re-
l *Congrcssional Record, 6sth Congress, 2d Session, p. 424.

34 The Dry Decade

hearsed familiar arguments. Much of it stressed the im
portance of national prohibition as a contribution to
the winning of the war striking "the mightiest blow
possible at the Prussian idea/' as Mr. Kelly of Pennsyl
vania put it 17 though it seemed clear that the Amend
ment could not take effect until the states had ratified
it and the brewers had received their year of grace, a
process which was not likely to be completed until the
war was over and the nation was again at peace.

Nevertheless, it was inevitable that the war should be
discussed and that it should arm with a fresh argument
those members of the House who were convinced that
prohibition was sound policy. The opponents of the
Amendment derived no similar comfort from the war.
They had only the case which they had argued many
times before and the conviction that prohibition could
not be made successful in the communities they repre
sented. These communities were for the most part cities
in the North. But in their opposition to the Amendment
the spokesmen of these cities were joined by a small
company of old-fashioned Democrats, personally dry,
from the dry South.

It was Mr. Small of North Carolina who insisted that
his own state, believing in states' rights, could not
consistently claim the right to establish a standard for
other states, 18 and Mr. Slayden of Texas who warned
the House that it ought not to place a contentious
question in the Constitution where any change was
subject to the veto of one quarter of the States. 19 But
the sharpest attack on the Amendment and perhaps
the clearest statement of the traditional Southern point

^Congressional Record, 6sth Congress, 2d Session, p. 438.
l *Ibid., p. 434.
ig lbid., p. 439.

The Adoption of the Eighteenth Amendment 35

of view came from a gentleman no longer identified with
this side of the question Mr. Heflin of Alabama. 20

Describing himself as a dry whose devotion was
proved by years of service, Mr. Heflin raised the ques
tion of whether it would help the cause of prohibition to
impose this law upon states which were unwilling to
accept it of their own volition. "The question is: Will
we be patient and tolerant enough to accord to other
states the right to settle the whisky question as we our
selves settled it through the rights and powers reserved
to the states ? Gentlemen, are we willing to take away
from the state that sovereign power without whose
exercise we would not now have prohibition in any
state in the Union, and, in taking that power away,
surrender forever the right and power of the state to
control its own domestic affairs?"

In Mr. Heflin's judgment, no emergency had arisen
which would justify interference by the federal govern
ment in the time-honored prerogatives of the states,
Not only would this interference be unwarranted. It
would be unwise. "All candid people must admit that
the wisest and best way to handle the whisky question
is through the exercise of the police power of the state/'
The state was the natural unit for control of purely
domestic questions of this sort. Standards varied in
different states. Public opinion varied. Some states
wanted prohibition. Well and good: "When you get
prohibition that way you have a strong and sympathet
ic public sentiment to sustain the state in its action/'
But the proper process was one of education and free
choice; the goal could not be reached "by depriving the
people of the states of the right and power to do that

^Congressional Record, 6$th Congress, 2d Session, pp. 457-
458.

36 The Dry Decade

which they can do and do more wisely and effectively
than can the federal government/'

Finally, unwise and unwarranted, this proposal^
seemed also to Mr. Heflin to be fraught with danger.
For it seemed to him in 1917 to foreshadow the possi
bility of open resistance by reluctant states. "Why, Mr.
Speaker, in 1776 the thirteen colonies took up arms
against the mother country because they were denied
the right to shape their own domestic policies and to
manage as each colony thought best its own domestic
affairs. . . . Mr. Speaker, I regret to see that some
gentlemen here from the South in their enthusiasm for
certain federalistic theories on prohibition do not seem
to realize that we are treading on dangerous ground."

The House voted, a few hours later. By a majority
of ^282 to I28jt overrode the last defenders of the dying
theory of states' rights and adopted the Amendment. 21

It is one of the anomalies of the story of prohibition
that those sections of the country which were ultimate
ly to show themselves most bitterly opposed to this
decision paid least attention to it at the time that it was
made.

This was a moment of triumph for the drys. The wets
seem scarcely to have observed their own defeat. It is
difficult to find any trace of organized protest against
the Eighteenth Amendment either during 1917, when
Congress was debating it, or for some time thereafter.

No memorials were adopted by the state legislatures
petitioning Congress to change its mind. No demonstra-

21 The vote of the House on the Amendment will be found in
Appendix C.

The Adoption of the Eighteenth Amendment 37

tions of hostility took place in the wet centers of the
country. The press of the larger cities reflects small
interest in the question, either in its letter columns or
its news. During the whole period of four months which
intervened between action by the Senate and action by
the House, when it might have been expected that the
opponents of this change would do their best to block
action or delay it, the columns of the New York Times
reveal only eight brief items of news concerned with the
Amendment and a single letter of protest from one
indignant reader. 22

Even a year later the fact that Congress had actually
adopted the Eighteenth Amendment and referred it
to the states for action seems scarcely to have pene
trated to the consciousness of such centers of potential
opposition as New York. In this year, 1918, Alfred E.
Smith was running as a candidate for Governor against
Charles S. Whitman, with New York's action on the
Amendment still in doubt. This would seem to have
presented an opportunity for a memorable debate on the
issue of prohibition. Yet, despite this opportunity, Mr.
Smith seems to have made his campaign on the issue of
public utility regulation and Mr. Whitman on the issue
of Tammany Hall and Mr. Smith's appointments as
Sheriff of New York. There is nothing in the Times
to indicate that from one end of the campaign to the
other either candidate so much as mentioned the word
"prohibition" in a single campaign speech.

The obvious explanation of this lack of interest dur
ing 1917 and 1918 lies in the fact that during these two
years a still larger story absorbed the interest of the
nation.

w New York Times, August 4, November 9, 15, and 23, De
cember 3, 10, ii, 12, and 16, 1917.

38 The Dry Decade

On June 12, 1917, when the Judiciary Committee of
the Senate favorably reported the Eighteenth Amend
ment and the Times was recording this news on page 13^
the first American troops were on their way to France,
the Italians had launched their offensive on the Tren-
tino, and the British were attacking south of Ypres.

On July 3 ist, when debate on the Amendment had
begun in the Senate and the Times found a place for it
in an inside column on page 5, the Battle of Flanders
was in progress, Kerensky was experimenting with a
new government in Russia, and the German fleet had
mutinied at Wilhelmshaven.

In August, September, October, and November,
while the Sheppard resolution was marking time after
its adoption by the Senate, and its enemies were plainly
neglecting an opportunity to rouse opposition to its
passage in the House, the French were attacking at
Verdun, a British army was marching into Palestine,
the Germans were in retreat from the Chemin des
Dames, the Austrians were driving into Italy, the Bol-
sheviki were overthrowing the Kerensky government in
Russia, the second Liberty Loan was being raised in the
United States, and the first American troops had faced
the fire of German guns in France.

Certainly in these circumstances it would have been
idle to expect the American public to keep alive and
clearly focused its interest even in so large a question as
national prohibition.

The war not only shifted the attention of the Ameri
can public away from prohibition. The intensity of
public interest in the war permitted those Americans
who were opposed to action on this question to believe
in some vague way that the whole agitation for pro
hibition, like the war itself, was something transient,

The Adoption of the Eighteenth Amendment 39

incidental to an emergency, and in due time bound to
disappear.

It was this feeling which unquestionably accounts
for the insistence by wets and even lukewarm drys on a
time-limit of six or seven years on the process of ratifica
tion. Whatever Congress itself might do, in the interest
of war efficiency and under the stress of war emotion,
the fact remained as a check on war excitement that the
opposition of any thirteen states was enough to block
adoption of the Amendment.

It was the mistaken notion of the opponents of pro
hibition that thirteen hostile states could hold out
comfortably for seven years.

V

It was on January 8, 1918, in the fourth week follow
ing the action of Congress, that the first state ratified
the Eighteenth Amendment. This state was Mississippi.
Its action was prompt and overwhelming. Within fifteen
minutes after the Governor of the state submitted the
question to the legislature, both Houses had arrived at
their decision. 23 There was no debate. The roll call was
impressive. A total of 122 votes was cast in favor of
ratification against 8 votes opposed.

This was an auspicious start, and it soon became ap
parent that there were certain forces operating in
favor of ratification which had not been assessed at full
value by the wets who put their faith in the effective
opposition of a handful of reluctant states.

In the first place, these gentlemen overlooked the
fact that the battle was now to be fought in the state
capitals and that it was precisely in the state capitals
^Associated Press dispatch, Jackson, Miss,, January 8, 1918.

40 The Dry Decade

that the Anti-Saloon League and its allied organizations
had been functioning most effectively for more than
twenty years.

The Anti-Saloon League understood the methods of
state legislatures. It knew how to swing pivotal votes
when they were needed. Mr. Wheeler has described how
this was done in several cases during the fight over
ratification which had now begun. 24 The opponents of
the law, meantime, had no such effective organization.
In fact, they were not organized at all. The only organ
ized opposition to ratification came from the brewers
and distillers. The brewers were under fire as pro-
German. The distillers had been outlawed for the
duration of the war. Ordinary people who were neither
brewers nor distillers, but who were opposed to prohi
bition on principle or as a matter of personal taste, had
no organization to represent them at the state capitols,
no lobby and no leaders.

In the second place, it soon became apparent that
the war would play a positive part and not merely a
negative part in the ratification of the Amendment. For
while the war overshadowed the Amendment and kept
it from becoming the burning issue which it might
otherwise have been, the war also served effectively to
identify patriotism with the cause of prohibition.

Canada was going dry in 1918, setting a persuasive
example as our senior partner in the war for the United
States to follow.

The United States itself was going dry, even in ad
vance of the Eighteenth Amendment and without its
aid, for the same reason which prompted action in the
case of Canada: namely, for the purpose of conserving
food. Under the Food Control Law adopted in August,
York Times, April i, 1926.

The Adoption of the Eighteenth Amendment 41

1917, the distilleries were already closed. Now, in
September, 1918, the government decided to close the
breweries as well as the distilleries, partly because of a
drought which had damaged crops and partly because
of a labor shortage and the necessity of drafting more
men for the army. 25

Finally, in this same month September, 1918
Congress gave its approval to a plan for "war-time"
prohibition on a national scale. Ironically enough, the
bill carrying this provision did not become a law until
fourteen days after the war was over and did not actu
ally take effect until the seventh month of peace.
Nevertheless, the approval of the proposal by Congress
precisely at the time when the state legislatures were
acting on the Eighteenth Amendment once more
linked the cause of prohibition with the war.

This cause already had effective leadership. It had
the momentum of the gains which it had made while the
nation was at peace. It had the precedent of some form
of prohibition adopted in twenty-six states before
April, 1917, and in nine new states during the war
period. 26 It had the support of many thousands of
devoted friends who did not lose their interest in it
merely because the government of Russia was falling
or the French were attacking at Verdun. It had the
prestige of an overwhelmingly favorable vote in Con
gress. It had the assistance of the bright bonfires which
the Anti-Saloon League now began to build behind
various state legislatures which seemed reluctant^ to
take action or more interested in what was happening
in Europe. 27 The net result of all these factors was a

26 New York Times, September 7, 1918.

26 Cf. Appendix A.

27\Vayne B. Wheeler, New York Times, April i, 1926.

42 The Dry Decade

prompt and favorable vote even in many of the wet
states and the completion of the process of ratification
in an almost incredibly short time.

It was on January 8, 1918, that Mississippi ratified
the Amendment. During the same month Virginia,
Kentucky, South Carolina, and North Dakota added
their vote to Mississippi's. Eight more states took ac
tion before the end of spring. Two states voted favor
ably in the fall; and twenty states added their approval
suddenly in the first fifteen days of January, 1919.

This brought the total to thirty-five. At 10:32 on the
following morning January 16, 1919 the upper House
of the Nebraska Legislature voted for ratification by the
comfortable majority of 31 to i, and three quarters of
the states had fallen into line.

The process of ratification was complete. The battle
in the state legislatures had ended in a rout. Prohibition
took its place in the Constitution of the United States.
The drys had scored their triumph. The wets have
never to this day agreed that the test of strength was
fairly staged and that the Eighteenth Amendment was
ratified with the declared approval of a majority of the
American people. There are three chief points which
they still cite in support of this contention.

In the first place, they insist that ratification was the
result of war psychology and the identification of pa
triotism with prohibition as a means of saving food.
They insist that the war was at all times dominant in
the discussion of the Amendment, from the day it ap
peared before the Senate down through the debate on
the question of ratification in the states, and that

The Adoption of the Eighteenth Amendment 43

without the war the Amendment would never 'have
been adopted.

In the second place, they insist that the quarrel over
prohibition was in large part a dispute for power be
tween rural districts and urban districts, and that in
this dispute the rural districts had more than their due
share of representation in the state legislatures which
ratified the Eighteenth Amendment.

It is impossible to dispute this argument successfully,
in so far as it applies to many large industrial states.
In New York, for example, one voter in rural Putnam
County had as much representation in his State As
sembly on the question of ratification as four voters in
Rochester, five voters in Syracuse and as many as seven
voters in certain districts of New York City. 28 Similar
conditions existed (and still exist) in other industrial
states. In Michigan one voter in rural counties like
Antrim, Alpena, Livingston and Midland had as much
representation in the State House of Representatives
as two and a half voters in Detroit. 29 This situation,
however, was not produced by prohibition. Prohibition
simply profited in certain states from the traditional
methods by which the American people achieve self-
government.

In the third place, the opponents of prohibition

insist that the Eighteenth Amendment was never

ratified in the sense that either of the major parties

first declared itself in favor of such action at a national

convention and then submitted the question to a

popular vote. Obviously nothing of the sort happened.

Neither the Republican nor the Democratic party had

ever declared itself in favor of national prohibition.

**New York State Manual, 1919, pp. 577> S7$> 59-

^Michigan Manual, 1919, pp. 822-823.

44 The Dry Decade

No President had ever been elected on this issue. No
state except Ohio ever submitted the question of
ratification to a popular vote. In Ohio a small majority
declared against ratification, 30 though the state itself
had recently been voted dry. In no other state did any
voter go to the polls to cast a ballot on the question.
All this is obvious. The reply made by the drys is that
the Amendment was ratified in strict accordance with
the provisions of the Constitution.

These are the three chief points which the wets cite
in support of their contention that the Eighteenth
Amendment never had the sanction of the country as a
whole. A different set of arguments is available to the
drys.

They can point out, first, that the Eighteenth
Amendment was ratified not only by the twenty-six
states which had adopted some form of prohibition as
their policy before the war, but also by twenty others,
includmg such traditionally wet states as New York,
New Jersey, and Wisconsin. 31

They can point out, second, that the vote in most
of the legislatures of these states was overwhelmingly in
favor of ratification; that in fifteen states it was a unan
imous vote either in one House or both; and that only
in five states New York, Illinois, Wisconsin, Louisi
ana, and Pennsylvania was it even close.

They can point out, finally, that more than 80 per
cent of the members of all the state legislatures in the
country voted in favor of ratification, and they can
insist that not even war psychology explains a vote so
heavily one-sided.

30 New York Times, December 18, 1919.
81 The votes of the forty-six state legislatures which ratified
the Eighteenth Amendment will be found in Appendix D.

The Adoption of the Eighteenth Amendment 45

With this argument, however, we merely return to
the point from which we started, and the contention of
the wets that this is just what happened. For it is
precisely the one-sidedness of the vote, the haste with
which it was taken, the failure to ask for the guidance of
popular referendum^, and the heavy emphasis on pro
hibition as good patriotism which seem to the wets to
supply convincing proof that the state legislatures were
stampeded into action under pressure of the war.

No method will ever be devised for ascertaining how
much truth lies in this argument and how much in the
argument used in rebuttal by the drys : their insistence
that the war merely added pace to a process which
would inevitably have reached the same conclusion.
The war played a part. That much is certain. How large
a part, wets and drys will continue to debate as long as
the question interests them.

Meantime, the importance of one influence wholly
remote from the war ought not to be lost sight of.
Whatever immediately effective political power was
exercised in this controversy was exercised by the drys.
From first to last the case for ratification of the Amend
ment was presented in the state capitals by men who
could claim to speak for millions of organized voters,
whereas the case against ratification was presented for
the most part by individual objectors who represented
only the force of their own convictions, eloquently
expressed, but less persuasive to the average member of
a legislature than a visible bloc of a thousand, five
thousand, or ten thousand votes.

Nothing of this sort could be offered by the oppon
ents of ratification, now that the brewers were laid low
and the burden of opposition rested on outsiders. For
even after the end of the war and a revival of public

46 The Dry Decade

interest in domestic questions, there was no leadership
capable of uniting an unorganized opposition overnight
into a movement formidable enough to interest a state
legislature. Down to the end of the story this opposition
remained scattered, ineffective, and perpetually out of
breath.

A mass meeting was held in Madison Square Garden
in New York City to denounce the adoption of the
Eighteenth Amendment. 32 It cheered to the echo the
demand that this law be repealed. But when the meeting
was over, it was over. A parade of twenty thousand
people marched through the streets of Baltimore on a
hot day in June, 33 but when it had passed the grand
stand it disbanded. A press campaign in opposition to
the Amendment was begun in the East by a hastily
organized association of opponents of the law; but the
ineffectiveness of the plans which these gentlemen
thought up may be judged from their proposal that a
day of protest should be set aside, to be known as
national "Daisy Day/' on which all opponents of
prohibition would wear this flower in their button
holes. 34

More serious opposition developed in the ranks of
union labor, which had what these other movements
lacked : real organization. At its Atlantic City conven
tion in June, 1919, the American Federation of Labor
denounced the adoption of war-time prohibition and
demanded modification of the Eighteenth Amendment. 35
Three days later this protest was carried to the doors of
the Capitol in a stormy and spectacular demonstration

32 New York Times, May 25, 1919.

33 Associated Press dispatch, Baltimore, June 2, 1919.

34 New York Times, June 23, 1919.
.y June 12, 1919.

The Adoption of the Eighteenth Amendment 47

of ten thousand union workmen which lasted for three
hours. 36 Meantime the Central Federated Union in New
York had urged its affiliated branches to poll their
members on the question of a strike, with the slogan
of "No Beer, No Work." 37 This slogan spread to other
states, and for a time the movement in favor of direct
action by organized labor assumed formidable propor
tions.

In the end it petered out. No strike took place.
Organized labor did its work and got its beer, but not
from the hands of Congress.

This was the last gesture. The fight was over, not in
the sense that the wet cities of the country accepted the
new law as binding upon their future conduct, for there
is nothing in the record to suggest this compliance on
their part, but in the sense that the last ineffective
effort to alter the decision of the legislatures now col
lapsed. From this point forward, the opponents of
prohibition put what faith remained to them not in the
legislatures but in the courts. Once more they were
doomed to disappointment.

Meantime, for the friends of prohibition there re
mained only the task of consolidating their gains by the
enactment of a law for the enforcement of the new
Amendment so speedily written into the Constitution.
It was a task which found them well prepared. On the
same day that Nebraska became the thirty-sixth state
to ratify the Amendment, the Anti-Saloon League an-

36 New York Times, June 15, 1919.
id., February 12, 1919.

48 The Dry Decade

nounced that it had already completed plans for an
enforcement measure. 38

This measure was introduced in the House of Repre
sentatives by Mr. Volstead of Minnesota on May 27,
1919, carrying provisions for the enforcement of both
war-time prohibition, now about to become operative on
July ist, at the beginning of the seventh month of
peace, and of constitutional prohibition, as established
by the Eighteenth Amendment.

A minority of the Committee on the Judiciary in the
House denounced this measure, demanded the repeal of
the war-time law on the ground that the war was long
since over and insisted that the provisions for constitu
tional prohibition were too harsh ever to be effectively
enforced. 39 This protest went unheeded. The drys were
in command. There was no challenging their power.

So foregone was the conclusion that the bill would be
adopted precisely in the form in which the Anti-Saloon
League wished it to be adopted that during most of the
debate only a few members of the House took any
part in the discussion on the floor. Certain amendments
were actually adopted or rejected by votes as small
as 26 to 14, 48 to 4, and 41 to 6, 40 with a handful of
drys in command of the situation, and a few wets on
the mourners' bench. On the final question of adoption
the House turned out for the sake of the record and by
a vote of 287 to 100, approximately the same vote as
the vote on the Amendment, approved the bill and sent
it to the Senate.

There one interesting change was made in it: the

38 New York Times, January 17, 1919.
**Ibid., July 8, 1919.

^Congressional Record, -66th Congress, 1st Session, pp. 2968,
2964, 2966.

The Adoption of the Eighteenth Amendment 49

insertion of a provision guaranteeing the farmer's un
questioned right to possession of sweet cider which
would later turn to hard; 41 but for the rest, no signif
icant change was made in the bill; the Senate's debate
was listless; and after two days of almost casual dis
cussion, during which the hope of the wets sank to a
vanishing point, the Volstead bill was adopted by the
Senate without even the formality of a roll-call vote. 42

For one brief moment the hope of the wets flared into
flame again. This was on October zyth, when President
Wilson suddenly returned the bill with his veto, to the
astonishment of the Anti-Saloon League and of Con
gress. 43 The stated ground for this veto was the fact
that Congress had lumped war-time prohibition with
constitutional prohibition, that the emergency of the
war had long since passed, and that this section of the
law should be repealed. To this comment the President
added, speaking more generally: "In all matters having
to do with the personal habits and customs of large
numbers of our people, we must be certain that the
established processes of legal change are followed. In no
other way can the salutary object sought to be ac
complished by great reforms of this character be made
satisfactory and permanent/'

Whether this comment implied disapproval by Mr.
Wilson of that section of the bill dealing with con
stitutional prohibition as well as war-time prohibition
has subsequently become the subject of lively dis
agreement. It is an interesting but academic point.

For within two hours of the time when the President

41 New York Times, September 5, 1919.

^Congressional Record, 66th Congress, 1st Session, p. 4908.

The text of the Volstead Act will be found in Appendix E.
43 New York Times, October 28, 1919.

So The Dry Decade

sent his veto message to Congress, the House overrode
his veto by a vote of 176 to 55, and on the next day the
Senate followed suit.

It was the end of the road. An experiment to be
described a decade later by another President as noble
in motive and far-reaching in purpose was now about to
start.

CHAPTER III
The Law in Action

IT is here at last dry America's first birthday/'
said a statement given to the press by the Anti-Saloon
League of New York on January 15, 1920. "At one
minute past twelve to-morrow morning a new nation
will be born. . . . To-night John Barleycorn makes his
last will and testament. Now for an era of clear thinking
and clean living! The Anti-Saloon League wishes every
man, woman and child a happy Dry Year." 1

It is difficult now to re-create the mood in which this
adventure started, but there can be no doubt of the
faith of the prohibition leaders that liquor was effec
tively banished from the United States by the Eigh
teenth Amendment. There were no reservations in the
assurance with which these leaders faced the future.
It did not seem to them then, in the hour of their
triumph, that this law might be difficult to enforce, that
too much must not be expected of it all at once, that
the results of its first year or even its first decade must
be viewed with leniency, and that the nation would be
fortunate if a law so revolutionary were effectively
established in a generation.

On the contrary, the dry leaders were plainly ready to
date the dawn of prohibition in the United States from
*New York Herald, January 15, 1920.

52 The Dry Decade

the day when the law became effective, and it is not
difficult to understand their confidence. Having cham
pioned prohibition for thirty years as a solution of the
liquor problem, their faith was too deeply founded to
harbor skepticism. They believed that the law could be
enforced and would be enforced, promptly, effectively
and to the immediate advantage of the country. Even so
experienced a campaigner as Mr. Wheeler saw no rea
son why the government should encounter any real
difficulty in enforcement. "I think five millions a year
appropriated to enforce this law would be ample/' said
Mr. Wheeler in a letter read on the floor of the Senate at
this time, " and if the liquor dealers suddenly become law-
abiding it can be reduced when the need disappears/' 2

So authoritatively optimistic were the drys, and so
completely routed were the wets, that most of the dis
cussion of prohibition which took place at this time was
concerned less with the problem of enforcement than
with the effect which enforcement would have on the
business and social life of a country suddenly changed
from wet to dry.

Various manufacturers of luxuries and near-luxuries
were interviewed by the press on the effect which this
change would have on the sale of jewelry, furs, and
motor cars. The Actuarial Society of America debated
the question of insurance rates in the light of a decreased
consumption of alcohol as against a probable increase
in the use of sugar. 3 The New York Times quoted a
representative of the arts who predicted that prohibi
tion would be followed by a great boom in the music
trade. 4 Only the California grape growers seemed to be

^Congressional Record, 66th Congress, 2d Session, p. 5655.

3 New York Times, October 24, 1919.

*Ibid., May 9, 1920.

The Law in Action 53

discouraged. Congress had been told that prohibition
would bankrupt thousands of California farmers, and
to the bitter end the Grape Growers' Protective
League fought the constitutionality of the law with
every device at its command, going so far as to obtain
a writ of injunction against the action of the California
legislature in ratifying the Amendment. 5 When the law
finally took effect, one vineyard owner killed himself
because the outlook seemed so dark. 6

In January, 1920, the grape growers of California do
not seem to have foreseen the bonanza that lay just
around the corner.

It was at midnight on January i6th that the law took
effect and twenty-four hours later that the public re
ceived its first enforcement news. "Four stills, two in
Detroit and two in Hammond, Indiana, were raided
yesterday in the government's crusade against violators
of the Volstead Act/' said an Associated Press dispatch
from Chicago on January lyth. "The raided stills, ac
cording to A. V. Dalrymple, head of the Central West
prohibition forces, were operating on a major scale/'

The country was dry. Prohibition had come. The
Constitution itself forbade the manufacture of intoxi
cating liquor. It seems clear, however, that there was no
sharp break between the old and new, in the sense that
manufacture ceased abruptly for a time and only at a
later date did illicit stills begin to flourish. The stills
were present from the start, obviously prepared to

^Associated Press dispatch, San Francisco, January 14, 1919.
^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, ist Session, p. 20,

54 The Dry Decade

carry on the business of manufacture without interrup
tion.

Such a development was logical in the circumstances.
Prohibition did not suddenly develop the illicit still
Moonshining antedated the Eighteenth Amendment
by many years. It was carried on in the backwoods
sections of the country by men who sought to evade the
payment of a government tax and carried on so exten
sively that over a period of forty-three years from 1876
to the date when the Eighteenth Amendment became
effective a total of 66,794 st ^ s were seized by agents
of the Bureau of Internal Revenue. 7

What happened now was merely that the illicit still,
which had hitherto been merely a mechanism of tax-
dodging, became the main source of production of hard
liquor and under the stimulus of a new market flour
ished on a more ambitious scale. In the forty-three
years from 1876 to 1919 the government had seized an
average of 1,553 stills a year. In the first six months of
1920, following the date when the Eighteenth Amend
ment became effective, the government seized 9,533
stills 8 an increase, for a six months' period, of 1127
per cent.

Moreover, prohibition had this second result on the
production of liquor by illicit stills. If it established a
new and wider market for the still large enough to
operate on a commercial scale, it also popularized the
small portable still, designed to cheat the law through
a process of home manufacture.

^Annual Reports of the Commissioner of Internal Revenue;
Prohibition Commissioner Woodcock, New York Times,
October 12, 1930; Statistics Concerning Intoxicating Liquors,
United States Treasury Department, 1930, p. 63.
^Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 64.

The Law in Action 55

On January 28th, the twelfth day of national pro
hibition, a force of federal agents set out from the
Customs House in New York City in what was de
scribed as "the greatest campaign ever conducted
against violators of the prohibition law/' a phrase which
was destined to become familiar. The goal of this drive
was a round-up of one-gallon stills which, even as early
as the second week of national prohibition, were thought
to be in wide use throughout the city.

"Any person caught with one of these stills in his
possession will be proceeded against at once," said the
Federal Prohibition Administrator in New York. 9 "I
advise everybody who has one to bring it to my office
immediately." On the following day, no stills hav
ing been surrendered, the Federal Administrator an
nounced that his men would promptly begin to search the
city for them. 10 For this purpose he had at his disposal a
staff of 178 agents to distribute among 1,278,431 homes.

Both the commercial still and the small still for
kitchen use thus made their appearance promptly, in
the first two weeks of prohibition. They date from the
first days of this experiment, playing a part in the prob
lem of enforcement in dry states as well as wet states.
In February, 1920 the first full month of national
prohibition 103 stills with an aggregate capacity of
7,194 gallons were seized and destroyed by federal
agents in Alabama. 11 In North Carolina, South Carolina,
Virginia, Kentucky, and Tennessee, the number of
commercial stills seized by federal agents assigned to
this district averaged for each state 157 stills a month, 12

9 New York Times, January 29, 1920.

1Q Ibid. y January 30, 1920.

"Associated Press dispatch, Talladega, Ala., March 13, 1920.

12 Associated Press dispatch, Louisville, January 28, 1921.

56 The Dry Decade

From the point of view of effective enforcement of
the law, the obvious problem presented by a still was the
difficulty of finding it when it was hidden away in
miniature form in a city home or in its commercial form
concealed in some thicket or some hollow so inaccessi
bly placed that even the owner of the land on which it
stood might be unaware of its existence.

A case in point occurred during these early months
when a still with a capacity of 130 gallons daily was
found operating five miles north of Austin, Texas, on
the farm of Senator Morris Sheppard, author of the
Eighteenth Amendment. 13

If the question of illicit stills raised a problem for
the government, there is nothing in the record to sug
gest that the prompt appearance of this problem
tempered the optimism shown by officials of the Pro
hibition Bureau 14 in their early statements to the press.

The Treasury Department had brought to Wash
ington, as the first Prohibition Commissioner in the
history of the United States, an Ohio Lawyer and a
former member of the Ohio Legislature John F.
Kramer, a devoted dry. This man was not a party boss.
He controlled no votes. He had no experience in the
business of party plunder. He was an unknown in
Washington, a disinterested outsider, a lifelong friend of

13 New York Times, September 7, 1920.

14 " Prohibition Bureau" did not become the official title of the
government's enforcement service until March 3, 1927.
Previous to this time the service was known as the "Pro
hibition Unit." In order to avoid confusion, however, the
phrase " Prohibition Bureau" is used throughout this book.

The Law in Action 57

prohibition, and a champion whose first announcement
to the press breathed confidence and fire: "This law
will be obeyed in cities, large and small, and in villages,
and where it is not obeyed it will be enforced. . . . The
law says that liquor to be used as a beverage must
not be manufactured. We shall see that it is not manu
factured. Nor sold, nor given away, nor hauled in any
thing on the surface of the earth or under the earth or
in the air." 15

Nevertheless, despite the finality of this statement
and the confidence with which it bristled, it rapidly
became apparent that the law would encounter a
variety of problems which had not been anticipated by
its authors. An immediate expansion of the business
of illicit distilling was one of these problems. Others
cropped up with a disconcerting promptness which is
evident in the calendar of the first official efforts at en
forcement.

January 16: The law took effect.

January 31: Congress was informed that wholesale
smuggling of liquor was in progress on the borders. In a
letter to the Appropriations Committee of the House of
Representatives, George W. Ashworth, director of the
Customs Service, reported that only "an infinitesimal
quantity " of this liquor was being seized, advised Con
gress that it had not adequately prepared to meet the
problem, and asked for the immediate appropriation of
an additional $2,coo,ooo. 16

February 19: Two agents of the Internal Revenue
Department engaged in prohibition work were arrested
at Baltimore on charges of corruption. 17

15 New York Sun, January 4, 1920.

^House Document No. 641, 66th Congress, 2d Session.

17 Associated Press dispatch, Baltimore, February 19, 1920."

58 The Dry Decade

February 28: Two carloads of patent medicine con
taining 55 per cent of alcohol were seized in Chicago by
government officials. 18

March 10: Federal agents in Brooklyn began a round
up of druggists accused of selling whisky without a
prescription from a doctor. 19

March ig: The lower House of the Mississippi
Legislature voted down a bill proposing to appropriate
state funds to aid the federal government in suppressing
stills. Major W. Calvin Wells, federal Prohibition
Commissioner for the state, urged the members of the
Legislature to reveal the sources of the liquor which he
said was being sold to state officials "openly and
brazenly/' 20

May 8: The federal prohibition office in New
York City complained that it was not receiving the
support of the New York police. "We are making a
great many arrests, but the cooperation of the local
authorities is absolutely necessary. We don't get that
cooperation/' 21

May 18: A deputy collector of Internal Revenue in
New York City engaged in prohibition work was ar
rested on charges of corruption. 22

May 24: Dr. Charles W. Eliot of Harvard University
declared in an ad'dress at Boston that people with money
and social position were helping to defeat the law.
"These so-called "best people/ who are doing so much
to interfere with prohibition enforcement, are causing
a great deal of trouble in nearly all parts of the country,

18 Associated Press dispatch, Chicago, February 28, 1920.
19 New York Times, March n, 1920.

20 Associated Press dispatch, Jackson, Miss., March 19, 1920.
21 New York Times, May 9, 1920.
. y May 19, 1920.

The Law in Action 59

and they are teaching lawlessness, especially to the
young men of the country/ 923

June 2: Captain Hubert Howard, federal Prohibition
Administrator for Illinois, estimated that 300,000
spurious prescriptions had been issued by Chicago
physicians since the law became effective. 24

June 6: The special train of the Massachusetts delega
tion to the Republican National Convention was raided
by prohibition agents who seized its stock of liquor. 25

June 17: District Attorney Clyne reported that the
dockets of the federal courts in Chicago were congested
with prohibition cases. "Between five hundred and six
hundred cases are now awaiting trial." 26

June 18: The Department of Justice announced that
it would be unable to employ special attorneys to handle
prohibition cases because of the failure of Congress to
provide the necessary funds. "District attorneys have
notified the Department that they cannot enforce the
Volstead Act without assistance and the Department
faced the alternative of drafting men from other
branches of work or leaving the district attorneys
without aid in handling the mass of cases rapidly ac
cumulating in the various districts." 27

June 30: San Francisco was reported to be wide open
in honor of the Democratic National Convention.
Acting Mayor McLernaii later said: "Everybody knew
it. The roof of the house was off, and San Francisco
was entertaining." 28

York Times, May 25, 1920.
Ibid. y June 3, 1920.
**Ibid., June 7, 1920.
**Ibid., June 18, 1920.

27 Associated Press dispatch, Washington, June 18, 1920.
28 New York Times, October 7, 1920.

60 The Dry Decade

July 2: Jail sentences aggregating fifty-nine months
and fines totaling $85,000 were imposed on officials of
two companies in New York City, found guilty of with
drawing 25,000 gallons of industrial alcohol which were
diverted to beverage purposes. 29

July 23: A Washington dispatch to the New York
Times reported: " Federal authorities are greatly con
cerned over the failure of state and city law officers to
cooperate with prohibition agents. The fact that the
anti-liquor laws are being flouted in many of the great
est cities of the country causes chagrin and disappoint
ment to the government." 30

So reads a page from the record of the first six months
of prohibition. One point it shows clearly. Even within
as brief a time as half a year every major question which
is now prominent in the problem of enforcement had
already raised its head.

The first important case involving the diversion of
industrial alcohol had come to trial. The first warning
of congestion in the courts had appeared in the form of
a federal docket five hundred cases behind schedule in
Chicago. The first evidence of lack of cooperation on the
part of local authorities had reached the public in the
lassitude of the New York police, the unwillingness of
the Mississippi Legislature to contribute money for
enforcement, and the complaint of federal authorities
in Washington that they were being asked to shoulder
the whole burden.

Meantime stills were flourishing both in the cities

2 ?New York Times, July 3, 1920.
Ibid., July 25, 1920.

The Law in Action 61

and in the rural districts. Patent medicine was under
suspicion. Druggists were being raided. Smuggling on
the borders was already a serious enough problem for
the Customs Service to report that only a fraction of
the liquor run across the border had been seized. The
first cases involving a new type of corruption in the ser
vice of the government had reached the courts. The
problem of insufficient funds had already compelled the
Department of Justice to abandon plans to add special
prosecutors to its staff. Dr. Eliot of Harvard was re
buking the best people for their complaisant revolt
against the law; and both the Republican and Demo
cratic conventions had furnished evidence that certain
men in public life and public office were content to
break the law while they were writing solemn planks on
law enforcement.

All this had happened in six months, before the law
had been in operation long enough for its enforcement
officers to be handicapped by a defeatist propaganda
launched by the wet press.

Within a half year's time a miniature "enforcement
problem" had shaped itself precisely in the form in
which the country was destined to debate it ten years
later.

There were various ways in which these early symp
toms of trouble might be viewed. One realistic way was
to recognize that difficulties which had appeared so
promptly were likely to be inherent in the law itself;
to concede that these difficulties probably could not be
wished away by insisting that they were inconvenient;
and to prepare a program bold enough and sufficiently
far-reaching to permit a real attack on the problems of

62 The Dry Decade

enforcement before they became too formidable to
handle. Another way was to ignore all this and to
assume that these early difficulties were the work
of a few malcontents who would soon retire from the
field.

There were several reasons why this second theory
was more attractive to the friends of prohibition than
the first. For one thing, it honestly represented their
convictions. The adoption of the Eighteenth Amend
ment found them reluctant to believe that this law
would encounter any difficulties which were more than
fleeting. The failure in the past of various state prohibi
tion laws to measure up to expectations they had been
able to understand and even to anticipate. There was
always the ready explanation that the trouble lay not
with the law itself but with the neighboring wet states
whose efforts broke it down. Once there were no wet
states, there would be no problem. For there would be
no liquor to defeat the law. The possibility that abund
ant sources of liquor might be developed under cover,
by an illicit industry strong enough to defy any efforts
which the government was willing to expend, does not
seem to have suggested itself to the sponsors of the
Eighteenth Amendment as an alternative which needed
to be considered seriously.

There was a second reason why the friends of prohi
bition preferred to believe that any early trouble was
the result of sabotage rather than a warning of difficul
ties inherent in the law. Not only did they believe this to
be true; it was obviously good tactics for them to say so.
For to face the question of inherent difficulties was
to raise the question of the wisdom of the law. To
denounce the malcontents was merely to insist on
public order.

The Law in Action 63

At no stage of these early proceedings did the friends
of prohibition raise before Congress or the country the
question of what should be done about such matters as
congestion in the courts, corruption in the government
or the failure of the states to vote money for enforce
ment. Whatever difficulties had appeared they attrib
uted to a conspiracy against the law and not to the
law itself: "a vicious conspiracy," as the Anti-Saloon
League put it, at the end of these six months, "to dis
credit and ultimately overthrow prohibition by viola
tion and non-enforcement." 31

Conspiracy could and should be punished. In the
opinion of the Anti-Saloon League the right way to solve
these problems was not to raise doubts about them, but
to bring down the full force of the law on the heads of
the conspirators. The courts had ample power to solve
any problems which had yet appeared, but the courts
were slow to act. Certain judges had shown themselves
to be sufficiently severe. "The unstinted credit due
them should not soften the weight of public condemna
tion justly deserved by those recreant judges, some of
them in territory dry even before national prohibition
became effective, who because of personal prejudice or
for other reasons have so dealt with violators of the
law as to make a mockery of the administration of
justice." 32

Satisfied with the law itself, ready to stand on Mr.
Wheeler's estimate of five million dollars as ample for
enforcement and convinced that it lay within the power
of the courts to break up a wholly artificial conspiracy
if they chose to act, the one appeal which the Anti-
Saloon League addressed to Congress at this time was an
81 New York Times, September 19, 1920.

64 The Dry Decade

appeal for legislation which would make it possible to
remove from the bench any judge who failed to impose
stiff sentences on violators of the law. 33

Powerful as were the courts, and reassuring as their
power seemed to the Anti-Saloon League in 1920, the
courts were at best one stage removed from the original
factor in violations of the law: namely, illicit liquor.
The courts, to be sure, could discourage the agents of a
new liquor traffic by the infliction of harsh penalties if
juries found these agents guilty. But the business of
patrolling the traffic in illegal liquor, of organizing a
large enough force to cope with it successfully, of detect
ing and arresting its chief agents, of producing evidence
against these agents which would stick in court, and of
providing enough courts to hear this evidence with
reasonable promptness all this was not the work of the
courts but the work, first, of the legislatures which wrote
laws and appropriated funds, and second, of the execu
tive officials who administered the laws and spent the
funds to obtain enforcement.

The central problem in destroying an illicit trade was
plainly the problem of shutting off its sources of supply.
There were five chief sources of supply for the illicit trade
which sprang up suddenly in the first six months of
1920. It was easy to identify these sources and possible
from the very start to appreciate what efforts would
be required to suppress them. The problems which
they presented could have been measured as accurately
in 1920 as in 1930.

^Resolution adopted at a national conference of the Anti-
Saloon League, New York Times, September 19, 1920.

The Law in Action 65

The first source was medicinal liquor. It was the least
important source but the most obvious. The Eighteenth
Amendment had forbidden the manufacture, sale, or
transportation of intoxicating liquor for beverage pur
poses, but left the legality of liquor for medicinal pur
poses intact. In these circumstances there was certain
to be a very considerable distribution of such liquor.
This was not a matter of guesswork but of plainly
demonstrated fact. By July 3, 1920, before prohibition
was six-months old, more than fifteen thousand physi
cians and more than fifty-seven thousand druggists and
manufacturers of proprietary medicines and extracts
had applied for license to prescribe and to dispense
intoxicating liquor. 34

How was the government to make certain that none
of this liquor was so dispensed as to defeat the purposes
of the law ?

The government's first task was to check the prescrip
tions written by the doctors. Its second task was to
supervise the druggists. It was not enough, for the
effective enforcement of the law, to inspect the records
from time to time. For the system by which the
druggist obtained liquor made it easy for him to
cheat the law, if he so desired, and still keep perfect
records.

On presentation of his permit the druggist withdrew
a certain quantity of whisky. By diluting this whisky he
could double its quantity and dispose of half of it ille
gally. If the government wished to prevent this practice
it must have enough inspectors to make certain that
w New York Times, July 4, 1920.

66 The Dry Decade

the whisky which the druggist sold was of the same qual
ity as the whisky he received from the distilleries.

The second source of supply was illegal beer. Under
the terms of the Volstead Act, breweries, or cereal bever
age plants, as they were now renamed, were forbidden
to manufacture beer containing more than one half of
one per cent of alcohol but permitted to manufacture
beer with a lower alcoholic content. It was impossible,
however, to manufacture legal beer of a lower alcoholic
content without manufacturing an illegal product first.
The process of making what now came to be known as
near-beer involved the production of genuine beer with
an alcoholic content of three or four per cent and then
the de-alcoholization of this beer until it reached the
legal limit. 35

It was the obvious result of this method of production,
the only method by which near-beer could be produced,
that it opened a wide doorway to violations of the law.
Under the Volstead Act breweries continued to manu
facture real beer, precisely as they always had. The
question of whether they would de-alcoholize this beer
before they sold it was a matter of good faith on the
part of the individual brewer plus what restraint the
government could impose upon his methods of produc
tion.

No real restraint was possible without a large enough
staff of agents to police places where near-beer was sold
in quantity, as well as places where it was made. For
it was a common practice of less scrupulous breweries

^Prohibition Commissioner Kramer, New York Times, April
27, 1921.

The Law in Action 67

to supply distributors with alcohol which could be
"needled" or "shot" into near-beer after it had passed
the inspection of the government.

The third source of supply was smuggled liquor. It
was an important source, particularly in the early years
of prohibition.

The problem may be simply stated. The length of
the Atlantic, Pacific, and Gulf coasts of the United
States is approximately 12,000 miles. The length of the
land borders on the north and south is 3,700 miles. The
length of the frontage on the Great Lakes and connect
ing rivers is 3,000 miles. The total distance vulnerable
to smuggling by land and sea, given enough incentive to
make smuggling profitable, is approximately 18,700
miles.

To prevent such smuggling, the government had in
1920 a force of 1,550 prohibition agents, 36 whose duties
included not only the prevention of smuggling but all
other matters pertaining to the law. There were also
some 3,000 active customs agents in the field. 37 A
limited amount of assistance could be expected of the
Immigration Service, the Public Health Service and
perhaps even the Federal Horticultural Board, which
had agents on the borders for other purposes. Along the
seacoast substantial help could be expected of the Coast
Guard.

The problem of the government was complicated by
three factors. First, these various services were wholly

^Report of the Commissioner of Internal Revenue, Fiscal year

ended June 30, 1920, p. 33.
& House Report No. 1581, 6sth Congress, 3d Session.

68 The Dry Decade

uncoordinated; second, their personnel was so meager
that if the entire staff of 1,550 prohibition agents had
been relieved of all other duties and placed along the
borders and the seacoast, each agent would have had
twelve miles to cover; third, the shore line of the United
States is richly indented with deep coves, convenient
creeks, and long stretches of deserted beach in close
proximity to the largest cities; for example, on Long
Island.

The important question was whether Congress and
an administration now faced with the duty of enforcing
a national prohibition law would create and maintain
a border and coast patrol adequate to prevent the easy
importation of illicit liquor.

The first six months of experiment in this direction
had brought from the director of the Customs Service
a sharp warning that only a fraction of the smuggled
liquor had been seized.

The fourth source of supply was industrial alcohol. It
was a munificent source of supply for the reason that the
experiment with federal prohibition happened to coin
cide precisely with the development of a large and varied
chemical industry in the United States. Ten years earlier
prohibition would have found this industry compara
tively quiescent. By 1920 it was in the full swing of its
post-war expansion, developing substitutes for German
dyes, discovering new processes like the manufacture
of rayon silk, and rapidly increasing the long list of in
dustries which required alcohol for a wide variety of
products ranging all the way from photographic films
to anti-freezing mixture and shaving cream to smokeless
powder.

The Law in Action 69

In 1910 the entire production of denatured alcohol
in this country had been less than 7,000,000 gallons.
By 1920 it had jumped spectacularly to 28,000,000
gallons. 38 The problem of preventing any part of this
28,000,000 gallons from being diverted to illicit pur
poses was a problem not only in devising formulas
which would make this alcohol undrinkable, but also
in tracing the whole output through the hands of its
successive owners from the time it left the special de
naturing plants which manufactured it until it reached
the ultimate consumer.

Unhappily, the government had no power under the
law to go beyond the original purchase of any products
manufactured. 39 Effective enforcement of the law re
quired that the government be given this power, plus
"tfctotigh agents to make certain that at no point in the
labyrinth of shippers and jobbers and manufacturers
and wholesalers and retailers was alcohol sold to dummy
companies which would in turn dispose of it to boot
leggers.

Finally, it was clear from the first day of national
prohibition that illicit stills could be relied upon to
furnish a large quantity of liquor and that the business
of ridding the country of stills required an effective army
of federal or state police.

A commercial still representing an investment of $500
could produce from 50 to 100 gallons of liquor daily. As
the Prohibition Bureau pointed out, this liquor could

^Industrial dlcohol, United States Treasury Department,

1930, p. 48.
* g lbid., pp. 24-25.

70 The Dry Decade

be made at a cost of fifty cents a gallon. 40 It could be
sold for three or four dollars a gallon at or near the
place of manufacture. At minimum profit a still
operating at full capacity would pay for itself in four
days' time. There was little to lose in having it seized.
Another could be purchased with the profits of the
next four days. Meantime the base of operations
could be shifted constantly in an effort to escape
detection.

As for the small still in a private home: the problem
here was Herculean. Not only could a portable one-
gallon still be purchased on the open market for as low a
price as six or seven dollars; in addition, the public
libraries of the country carried on their shelves many
books and magazines which discussed the art of dis
tilling liquor with such commonplace utensils as wash
boilers, steam cookers, and even coffee percolators.

The government itself had contributed to the existing
literature on this subject a number of such pamphlets
as Farmer's Bulletin No. 269 (1906), Farmer's Bulletin
No. 410 (1910), Bureau of Chemistry Bulletin No. 130
(1910), and Department of Agriculture Bulletin No.
182 (1915), describing in detail and with complete sim
plicity the manufacture of alcohol from such familiar
ingredients as apples, oats, bananas, barley, sorghum,
sugar beets, watermelon, and potato culls. In the sim
plest form of manufacture, all the equipment needed to
make an evil-tasting alcohol was a tea kettle, a quart
of corn meal and an ordinary bath towel.

If the business of ridding the country of commercial

stills was a battle with an unseen enemy over a wide

front which was constantly shifting, the business of

40 Prohibition Commissioner Haynes, New York Times, July

1 8, 1923.

The Law In Action 71

putting an end to distilling in private homes was an
effort such as no government had ever undertaken.

Such were the potential sources of supply of a new
traffic in illegal liquor. All that was needed to develop
these sources and make certain that they would grow
and prosper was a market for the goods so readily
available. This market was assured in the circumstances
in which the venture started.

For though the Eighteenth Amendment had now be
come the law of the land, there were large numbers of
people who failed to accept this law as binding. In many
urban sections of the country opposition to the method
and philosophy of prohibition was deep-rooted. Most
of the states with large industrial centers New York,
New Jersey, Pennsylvania, Massachusetts, and Con
necticut in the East; Illinois, Missouri, and Wisconsin
in the central section; California in the West had
refused to adopt state prohibition laws. In the large
cities opposition was particularly stubborn^ as the result
both of a prevailing set of moral values different from
moral values in the smaller towns and the influence
of a rich strain of recent European immigration. Time
and again the cities had shown their opposition in the
past. While the Eighteenth Amendment was being
considered by Congress and the states, San Francisco,
St. Louis, St. Paul, Chicago, Cincinnati, Cleveland,
Detroit, and Boston all voted on a proposal for state
or municipal prohibition and all voted to reject it. 41

41 New York Times, November 7, 1918; ibid.; Legislative
Manual, Minnesota, 1919, p. 624; New York Times, April 2,
1919; Ohio General Statistics, Vol. 5, p. 25; ibid.', Michigan
Manual, 1919, p, 868; New York Times, December 17, 1919.

72 The Dry Decade

The question at this point is not whether opposition
to prohibition before its enactment was wise or unwise,
but whether this opposition persisted after the adoption
of the Eighteenth Amendment with enough spirit to
make it count as one of the problems in enforcement.
On this point there can be no doubt. The federal Pro
hibition Bureau had itself complained at the end of its
first half year of work that the law was being flouted in
many of the largest cities 42 and the backwash of hostility
in the industrial sections was already rising.

In this same half year the legislatures of New Jersey,
New York, and Massachusetts adopted bills proposing
to legalize light wines or beer, or both, despite the limita
tions in the Volstead Act. 43 The American Federation
of Labor, with its constituency chiefly in the cities,
reiterated its opposition to the law. 44 The Republican
and Democratic parties, meeting at their national con
ventions in Chicago and San Francisco, showed them
selves so well aware of the hostility to prohibition in the
industrial states that they deliberately dodged the
question of endorsing the Eighteenth Amendment in
their platforms, though it was now a part of the Con
stitution and though they were specifically called upon
for an endorsement. 45

Nor did opposition to the Eighteenth Amendment,
as a factor in the problem of enforcement, develop
merely in those states which had hitherto been wet. A
definite change had taken place in states which had
hitherto been dry. For in many of these states people
who had been able before 1920 to obtain alcoholic

^New York Times, July 25, 1920.

Ibid.> March 3, May 25, May 7, 1920.

M Ibid., June 19, 1920.

45 Ibid., June u, July 3, 1920.

The Law in Action 73

beverages by entirely legal means, in limited quantities
or in limited percentages, now found themselves denied
this legal access and therefore tempted to disobey the
law.

Moreover, this substantial change had taken place.
Hitherto these people living in dry states had been
governed by laws which varied in their standards, their
methods, and their severity entirely according to local
taste. Alabama permitted the importation of limited
quantities of intoxicating liquor at regular intervals
twice a month. Mississippi permitted the manufacture
of home-made wine. Michigan placed no limit on per
sonal importation for personal use. Other states had
other standards. In few states were the laws dealing
with the difficult and long-standing problem of regulat
ing liquor precisely alike. In some states they differed
widely. In all states they followed local customs, theo
ries and precedents. Now, however, people living in these
dry states found themselves confronted suddenly by a
system which imposed the same universal standard of
judgment on every city, every town and every hamlet
in the country.

The change could scarcely fail to raise new questions
of large importance.

This was the situation shaped by the first six months
of the effort to enforce the law. Large problems had
appeared. It is not necessary to describe these problems
as insoluble, but it is perfectly clear that they tran
scended any estimate which assumed that this law could
be enforced with a handful of agents, a little exhortation,
and a casual appropriation of five million dollars. The
friends of prohibition who took this optimistic view were

74 The Dry Decade

guilty of one fundamental misconception. They re
garded the Eighteenth Amendment as a treaty of peace
with the liquor traffic. It was, in fact, a declaration of
unremitting war.

Only one agency of the government could make
this war, could raise the forces needed to conduct it
and equip these forces with the bold appropriations and
the irresistible authority needed to suppress the ready
sources of illicit liquor.

This agency was Congress. For while the legislatures
of forty-six states had ratified the Amendment, many
of these legislatures had never chosen hitherto to ex
periment with prohibition. Inevitably they looked to
Congress to set the pattern of enforcement.

The history of national prohibition properly begins
in the Capitol at Washington.

CHAPTER IV
The Neutrality of Congress

V^ONGRESS had been sitting uncomfortably between
the devil and the deep sea for some years when this
adventure started. The brewers had constantly been
making threats and issuing ultimatums. The Anti-
Saloon League had promised prompt retaliation at the
polls against Congressmen who blocked its program.

Time after time, for more than a generation, Congress
had been asked to take sides in a bitter and endless
dispute whenever it was forced to vote on a bill to place
higher taxes on the liquor traffic, or a bill to bar liquor
advertising from the mails, or a bill to prevent inter
state shipments of liquor itself, or a bill to establish
outright prohibition at the army posts, in the District
of Columbia, or in other territory under federal control.
Congress had had no respite from the problem. If it
gave its support to the brewers, it invited reprisals from
the Anti-Saloon League. If it gave its support to the
Anti-Saloon League, it encountered the mailed fist of
the brewers. By 1917 there were a good many members
of both Houses who were weary of debating the liquor
traffic, tired of choosing sides, and increasingly resentful
at being forced to jeopardize their political security on
an endless sequence of decisions.

So real was the resentment of Congress on this score

75

76 The Dry Decade

that unquestionably it played a part of some importance
in the adoption of the Eighteenth Amendment. During
the debate in the House on that occasion Mr. Heflin
of Alabama suggested that certain members plainly
intended to vote for prohibition merely in order to be
rid of it. These gentlemen, he insisted, set too high
a value on their own impatience. "No member of the
House can dispose of this question simply by saying that
he was tired of being bothered with it." 1 In the Senate
Mr. Harding of Ohio had declared that it was "unwise,
imprudent and inconsiderate to force the issue" while
the war was on, but agreed that it would be pleasant,
war or no war, to have it out of the way forever. "I
want to see this question settled. I want to take it out
of the halls of Congress and refer it to the people, who
must make the ultimate decision." 2

Now that the decision was made it seemed possible
to hope for relief at last from the steady, unrelenting
pressure of both wets and drys. Certainly the mood of
Congress in January, 1920, seemed to reflect a belief that
it had done its duty and that it would now thank every
body to bother it as little as possible with a question it
had heard discussed too often.

Evidence of this frame of mind is to be found in the
record of Congress during the first critical six months
following the date when the law became effective.

Congress was in session during all but the last few
weeks of this period of half a year. It had met in Decem
ber, 1919, and it remained in session -until June, 1920.

Congressional Record, 65th Congress, 2d Session, p. 458.
2 Ibid., 65th Congress, ist Session, p. 5648.

The Neutrality of Congress 77

It had an excellent opportunity to watch the first efforts
at enforcement. It was in a good position to measure the
difficulties which had appeared so promptly and to de
cide what action they required. It had seen the first signs
of congestion in the courts. It had learned from the
Customs Service that liquor was flowing easily across the
borders. It had heard the complaint of the Prohibition
Bureau that the law was being ignored in many of the lar
ger cities and it had observed the failure of local authori
ties in certain districts to cooperate with federal officials.

This was the situation which confronted Congress.
The extent of its interest in this situation may be judged
from the fact that only six times in six months was pro
hibition referred to, even briefly, on the floor of either
House of Congress.

Mr. Volstead made one speech in praise of the law,
and Mr. Babka of Ohio one speech in opposition to it. 3
An impromptu attempt to repeal the Volstead Act by at
taching a rider to an appropriation bill was defeated by a
vote of 89 to 38.* Mr. Warren of Wyoming suggested in
the Senate that a serious effort to enforce the law might
ultimately cost as much as $50,000,000 annually, where
upon Mr. Sheppard read into the record Mr. Wheeler's
estimate that $5,000,000 would be ample for the first
few years, with the probability of a reduction later. 5
Late in the session, on June ist, the Senate argued for
ten minutes whether or not to believe newspaper reports
of large-scale trading in forged certificates to take
whisky out of bond. 6

^Congressional Record, 66th Congress, 2d Session, pp. 8936,
9051,

*IUd., pp. 3472-3474-
TOi., pp. 3108, 5655.
*Ibid., p. 8049.

78 The Dry Decade

At this point Congress adjourned. It had been in
session during the first six months when a precedent
was being set for all future enforcement of the law. Its
own attitude had helped to set this precedent. Not once
in these first six months had any member of either
House proposed to increase the meager appropriation of
$2,000,000 which had been allotted to the Prohibition
Bureau for the first half year. Not once had any mem
ber of either House discussed on the floor of Congress
the question of prohibition on the border or prohibition
in the cities or prohibition in the Attorney GeneraFs
office or prohibition in the courts. Not once had Con
gress taken any step or shown that it contemplated
taking any step which might have convinced skeptical
sections of the country from the very start that this law
was intended to be taken seriously.

From January to June in 1920 Congress showed less
interest in the law than many church societies, many
women's clubs, and many Chautauqua circuits, at this
time earnestly and in all good faith debating the bene
fits to be achieved by prohibition, thanks to the foresight
of the authors of the Eighteenth Amendment.

If we follow the work of Congress into a second session
the pattern does not greatly change except in one par
ticular. By this time, back in Washington after a sum
mer holiday, Congress had before it certain official
summaries of some of the handicaps under which the
government had labored.

The Commissioner of Internal Revenue had now filed
his first report and pointed out the difficulty of enforcing
the law with an inadequate staff of agents. " It was found

The Neutrality of Congress 79

impossible to establish a salary scale that would com
pare favorably with salaries paid in other occupations
and which would prove sufficiently attractive to enable
the department to secure the number and type of men
needed." 7

These men were expected to be intelligent enough to
understand the law, honest enough to play no favorites
in its administration and content enough with the terms
of their employment to resist the bribes certain to be
offered them by an enormously successful industry.
For the purpose of finding such men Congress had
appropriated sufficient funds to pay a salary of $35 a
week.

Meantime, appearing before the Appropriations Com
mittee of the House of Representatives in December,
1920, Attorney General Palmer had unbosomed himself
of a long list of troubles acquired by his own department
in its experiment with enforcement. There had been an
alarming increase in federal police activities. In the
first eight months of prohibition 17,566 arrests had been
made by federal agents. The Attorney General's office
was being asked to prosecute cases at the rate of three
thousand a month. "It is totally and absolutely impos
sible to prosecute those cases successfully unless we
have more help." The courts were behind schedule.
"The district judges are very restless under this new
burden. I am receiving constant complaints from them.
. . . The Department of Justice cannot do the work
that ought to be done with its present force under the
present appropriation." 8

^Report of the Commissioner of Internal Revenue, fiscal year
ended June 30, 1920, p. 30.

Associated Press dispatch, Washington, December 29, 1920;
New York World, December 30, 1920.

80 The Dry Decade

Nevertheless, despite this official information, now
brought forward to corroborate the obvious evidence
of the government's experiences earlier in the year, the
second session of Congress passed with as little stir
about enforcement as the previous session. The House
spent two hours on one occasion debating an increase
in the appropriation of the Prohibition Bureau, 9 and
fifteen minutes on another occasion debating an increase
in the appropriation of the Department of Justice for
legal work on prohibition cases, 10 The sums of money
at issue in these debates, however, were scarcely im
portant enough to raise large questions of public policy:
being $600,000 in one case and $200,000 in the othen In
the Senate, meantime, not a word was spoken of prohibi
tion during the entire session from first to last, except on
January I4th, when Mr. Sheppard called the attention
of his colleagues to a telegram which had reached him
from Bishop James Cannon, Jr., urging strict enforce
ment. 11

The low state of interest of both the Senate and the
House in the question of enforcement during this second
session may be judged from the record of the bills sub
mitted. For while bills in Congress are often merely
verbal broadsides, not necessarily intended to be made
into laws, the activity of Congressmen in this respect is
usually an accurate index of the relative importance
which they attach to various public questions.

In this case, eleven prohibition bills were introduced
in the session beginning in December, 1920, and ending
in March, 1921 as compared, for example, with eighty-

*Congressional Record, 66th Congress, 3d Session, pp. 1224-
1226, 1229-1233, 1328-1330.
Ibid., pp. 1016-1017.
p. 1393-

The Neutrality of Congress 81

nine farm bills and of these eleven only five showed
any interest in the problem of enforcement in the United
States. The other six soared out of the United States,
ignored the problem of enforcement and proposed in
stead a fresh advance on a broad front west toward
Asia.

Three bills demanded the prompt extension of the
Volstead Act to the Philippines. 12

Three others went past the Philippines and proposed
to extend the Volstead Act to Americans living in con
sular districts of China. 13

At this point prohibition in the United States was
a little more than a year old. The sum of $4,575,000 had
been spent on its enforcement. This sum was demonstra-
bly inadequate. The Prohibition Bureau was still with
out the staff it needed. The border was unprotected.
No police force had been organized on a large enough
scale to suppress illicit stills. Not an hour's time had
been spent on the floor of either the Senate or the House,
discussing the precise responsibility of the states or the
question of what the federal government would do in
case the states did nothing. The law was being disobeyed
in many places. Congress seemed to take small interest.

The question arises, where were the militant prohibi
tion organizations which had played so large a part in
the enactment of this legislation ? Their authority could
not have vanished in a moment. They were too familiar

12 S. 4550, Mr. Jones of Washington; H. R. 14470, Mr. Ran
dall; H. R. 14478, Mr. Volstead; 66th Congress, sd Session.

13 S. 4551, Mr. Jones of Washington; H. R. I4758> Mr. Up-
shaw; H. R. 14954, Mr. Randall; 66th Congress, 3d Session.

82 The Dry Decade

with the history of prohibition legislation not to recog
nize the importance of a prompt start if Congress really
intended to enforce the law. They were too close to the
scene of action to believe that in the first year of en
forcement Congress had taken its responsibility very
seriously. Why had they failed to rouse Congress from
its lethargy and stir it into action ?

The fact is, that the militant prohibition organizations
found themselves in a somewhat equivocal position.
They devoutly wished the law to succeed. They were
apparently reluctant to bring too much pressure to
bear on Congress, in the hope of making it succeed,
lest they invite the country to believe that they re
garded the first year's experiment as a failure. To ask
Congress for drastic action to enforce the law would
have been to admit that enforcement required large
sums of money. To ask Congress to appropriate these
sums of money in the first year of prohibition would all
too probably have created fresh opposition to the law
precisely at the time when the chief political interest of
the country lay in the prompt reduction of its post-war
taxes.

Confronted by a choice between arousing Congress
and reassuring the country, the prohibition organiza
tions chose the second of these two alternatives. Aside
from making a scant five million dollars available for the
purposes of the Prohibition Bureau, Congress had done
literally nothing at the end of a year to enforce the law.
The prohibition organizations chose nevertheless to
hail the results achieved by Congress as little short of
astonishing. To the Methodist Board of Temperance,
Prohibition and Public Morals it seemed at the end of
this first year that the law was already being enforced
more effectively than many older laws throughout 90

The Neutrality of Congress 83

per cent of the country. 14 So well had Congress done its
work, in the opinion of the Anti-Saloon League, that in
this first twelve months the country had saved "at a
conservative estimate . . . more than a billion dollars." 15

Nor need the country fear that against this saving
would be charged higher taxes to cover the cost of en
forcement. Mr. Wayne B. Wheeler, who had been ready
to predict in 1920 that the law could be enforced at an
annual cost of five million dollars, was now ready to
predict in 1921 that it could be enforced without any
cost whatever. The law would actually pay dividends.
"There will be collected in fines, forfeited bonds and
prohibitive taxes more than it costs to enforce the law.
. . . This appropriation is different from any other ap
propriation, because it returns to the government more
than is paid out for the service." 16

Plainly Congress had nothing to fear in so mellow a
mood on the part of the militant friends of prohibition.
During this first year it was occasionally asked to make
a small increase in an appropriation bill or to adopt the
measures which sought to extend the Volstead Act to
China, a proposal which had received the warm en
dorsement of the Anti-Saloon League. 17 For the^ rest,
it went its way in peace, less bothered by the question of
how to enforce the Eighteenth Amendment than it had
ever been by the question of whether to enact it.

Not until the second year of prohibition was this
serenity interrupted by the appearance of a new prob
lem, suddenly posed before Congress by a totally unex-

14 New York Times, February 13, 1921.

l *IUd. y January 24, 1921.

"Testimony before Senate Committee on Appropriations,

New York Times, January 29, 1921.
* 7 New York Herald, December 14, 1920.

84 The Dry Decade

pected decision emanating from the Department of
Justice.

This decision was the ruling of Attorney General
Palmer, reached at the tag end of the Wilson Admin
istration and announced only after it had taken leave
of office, that the Volstead Act placed no limit on the
authority of physicians to prescribe beer and wine for
medicinal purposes. "I can find in the act no purpose
either to directly impose a limitation or to confer upon
the executive officer any power to do so/' said the At
torney General. "I think, therefore, that a regulation
having this in view would be, in effect, an amendment
to the statute and not a mere regulation to carry out the
expressed purpose of Congress/' 18

As might have been anticipated, the leaders of the
prohibition movement lost no time in denouncing this
decision as poor law, poor statesmanship, and an un
fortunate reversal of policy which was certain to en
courage the use of liquor as a beverage on the pretext
that it was being used as medicine. Under the auspices
of the prohibition organizations meetings were held
throughout the country in protest against the ruling
made by Mr. Palmer. On behalf of the Anti-Saloon
League Mr. Wheeler insisted that neither " the Attorney
General nor anyone else is justified in placing such a con
struction on the wording of the law." 19 In the Senate
Mr. Willis of Ohio and in the House Mr. Campbell
of Kansas introduced a bill designed to copper-rivet the
law .against tampering by executive officials.

This measure not only strictly forbade the prescrip-

18 New York Times, March 10, 1921.
19 New York World, March 9, 1921.

The Neutrality of Congress 85

tion of beer as a medicine and limited prescription to
spirituous and vinous liquors : in addition, it drew up a
rigid code of conduct for the medical profession. No
physician was to prescribe, nor was any druggist to sell
or to furnish on prescription, any wine containing more
than 24 per cent of alcohol by volume. No physician
was to prescribe, and no druggist was to sell, more than
one half pint of alcohol to any one person within a period
of ten days. No physician was to receive from the gov
ernment more than one hundred prescriptions for any
period of ninety days, or to issue more than this number
unless he could prove "that for some extraordinary
reason a larger amount is necessary/' 20

This was the answer of the friends of prohibition to
the challenge of Attorney General Palmer. To many
spokesmen of the medical profession, unexpectedly
caught in the cogs of this dispute, it seemed to go un
reasonably far.

Insisting that it was important for physicians to have
the "unimpaired right" to prescribe alcohol without
Congressional restrictions, the American Therapeutic
Society declared that "no legislative body or enforce
ment authority should limit or hamper a doctor in the
legitimate practice or exercise of his functions as a
physician/' 21 The New York Medical Association pro
tested that there was "nothing inherent in the powers,
the traditions or the knowledge of Congress to justify
this assumption of suzerainty over the profession of
medicine as practised in the United States." 22 In the
columns of the Journal of the American Medical Asso
ciation a number of prominent medical men, including

^United States Statutes, Vol. 42, pt. i, p. 222.

21 New York Times, June 5, 1921.

Ibid., May 21, 1921.

86 The Dry Decade

Dr. Charles L. Dana, Dr. Samuel Lambert, and Dr.
Herman M. Biggs, denounced the proposed bill as "an
indictment of the integrity of the whole profession, in
that it is assumed that many of its members, unless re
strained by law, will pander for gain to the people's
desire for drink/' 23

Such protests, however, were dismissed by leaders of
the prohibition movement as beside the mark. In the
opinion of these leaders a larger issue was at stake than
the independence of the medical profession. This issue
was the sanctity of prohibition. Doctors who opposed
this legislation were denounced by the Anti-Saloon
League. 24 Congress was advised to ignore their protests.
On June 27 the Willis-Campbell bill was brought be
fore the House, debated for a single day and adopted
by a vote of 250 to 93. 25 In the Senate some opposition
to the bill developed, but not enough to block its pro
gress. It was adopted by the Senate on August 8th by a
vote of 39 to 2o; 26 sent to the President on November
1 9th, after a delay in conference; and signed by him
on November 23d.

By contrast with the indifference of Congress in the
first year of prohibition, here, in the second year, was
action. Yet it is clear that this action, designed to close a
gap unexpectedly opened in the Volstead Act, actually re
sulted in creating a situation more anomalous than ever.

For the great difficulty, to date, had not been a lack
of drastic legislation. There was plenty of drastic legisla
tion in the Volstead Act. The obvious failure of Congress
had been its failure to make that law effective.

23 Journal of the American Medical Association, June 4, 1921.

^New York Tribune, April 1 8, 1921.

^Congressional Record, 6yth Congress, 1st Session, p. 3135.

ZQ Ibid., p, 4742.

The Neutrality of Congress 87

At the end of a year it was already clear that if Con
gress wished to put an end to widespread lawlessness it
would be wise to give the country either less law or more
machinery of enforcement. At this juncture Congress
chose to enact more law, rather than less law, and to
create no new machinery to enforce it.

The Willis-Campbell Law, known before its adoption
as the Emergency Beer Bill, represents a landmark in
the work of Congress because it was the first law, and for
some years the only law, enacted by Congress to supple
ment the Volstead Act. Not until March 26, 1924, when
a bill to authorize a temporary increase in the Coast
Guard received the approval of both Houses, 27 did Con
gress adopt another law in any way concerned with
prohibition in the United States.

Meantime, one session succeeded another, and the
record revealed no sudden change in the interest of
Congress in the problem of enforcement. Now and then
a flurry of speech-making would sweep the Senate or
the House, with a few wets and drys assailing one an
other for bigotry or treason. Now and then some partic
ularly ambitious plan would be submitted in the form
of a bill or resolution: on February 2, 1922, Senator
Jones of Washington, reading in the newspapers that
Spain had threatened to boycott Iceland because of the
adoption of prohibition by that country, introduced a
resolution expressing the Senate's attitude toward
Spanish-Icelandic relations. 28 Now and then some vigor
ous partisan of prohibition like Mr. Upshaw of Georgia

27 H. R. 6815, 68th Congress, 1st Session.
28 S. Res. 230, 6yth Congress, 2d Session.

88 The Dry Decade

would rise on the floor of one House or the other, to
insist that the law must be enforced regardless of the
cost, even if Congress was forced to spend "twenty
millions or fifty millions or even a hundred millions a
year, until this mighty task is completed/' 29

On all such occasions the House was generous with its
applause but by no means prepared to yield uncritically
to its own enthusiasm. If it frequently cheered to the
echo the proposal to enforce the law fearlessly and to
the hilt, "regardless of the cost/' on no occasion did it
accept this principle as a guide to its own action. Ap
propriations for the Prohibition Bureau remained at a
modest figure, so far below the demonstrated needs
of the enforcement service that by the end of the second
year of the experiment some of the smaller prohibition
organizations, if not the Anti-Saloon League itself, were
beginning to be restless.

In November, 1921, the chairman of the Prohibition
party complained that the law had been neglected, de
plored "the scandalous, ineffective enforcement in
many parts of the country" and insisted that the time
had come when "the American people must take things
into their own hands/' 30 The American Lutheran
Publicity Bureau gave the press a statement declaring
that "the authorities in many places are in collusion
with the lawbreakers or helpless against the magnitude
of the evil; the situation is fast becoming intolerable." 31
The annual conference of Methodist churches in New
York adopted a resolution asking the President to call
out the army and the navy to put an end to bootlegging. 32

^Congressional Record, 6yth Congress, 4th Session, p. 4544.

30 Associated Press dispatch, Chicago, November 29, 1921.

31 New York Times, January 12, 1922.
April 4, 1922.

The Neutrality of Congress 89

All told, there was enough dissatisfaction and resent
ment in the air, as prohibition entered its third year, to
convince the loyal but inactive dry majority of Congress
that the time had come when it must act again. Ac
cordingly, a new bill was brought before the House in
April, 1922. It proposed to attack the problem of en
forcement not by arming the officers of the law with
larger funds or more authority, but by deporting aliens.

This proposal, in the form of a bill to make alien
violators of the law liable to deportation for a first of
fense, was a measure to which most of the prohibition
organizations could give their cordial approval, for the
reason that it implied no lack of merit in the law itself
but fitted in precisely with the theory that opposition
to the law was the work of a small company of unpa
triotic and disloyal malcontents. In this theory many
of the friends of prohibition had put their faith since the
start of the experiment, and by 1922 the Anti-Saloon
League was prepared to believe that a large part of
the difficulty encountered by the law could be attributed
to alien influence. "In many places," wrote Mr. Wheeler,
in a letter addressed to members of the House, "most of
the offenders against the liquor and narcotic laws are
aliens." 33

In the House itself opinion was divided between those
who shared this point of view and those who believed
that aliens contributed only a small fraction of the num
ber of violations occurring every day. This second group
insisted that the right way to enforce the law was to en
force it even-handedly against all violators and declared

^Congressional Record, 6yth Congress, 2d Session, p. 5074.

9O The Dry Decade

that the proposal to make alien violators liable to depor
tation for an act which might involve merely the manu
facture of a gallon of home-brewed wine was to create a
penalty out of proportion to the character of the offense.

This argument was advanced in the House not only
by many opponents of prohibition but by some of its
unquestioned friends. Mr. Moore of Virginia warned
his dry colleagues that such legislation as this might
react against their cause. 34 Mr. Huddleston of Alabama,
describing himself as a lifelong prohibitionist, insisted
that the proposal to punish alien violators first "by
fine and imprisonment in this country and then by
banishment to some foreign land from which perhaps
the alien fled to save his life . . . marks the high tide of
fanaticism and intolerance/' 35

Such protests as these, however, stimulated friends
of the bill to redouble their efforts in its behalf. Mr.
Cramton of Michigan told the House that aliens who
wert unwilling "to support the supreme law of the land,
the codification of our American spirit/' deserved small
consideration at the hands of Congress: "for God's
sake send them back where they came from/' 36 Mr.
Roach of Missouri replied to those critics of the bill
who had described it as too drastic: "I want to answer
that," said Mr. Roach, "by saying that in our attempt
to support the Constitution of the United States and
enforce it, we are not going to write a law that is too
drastic for that purpose. That is exactly the trouble now,
that the laws by which the Eighteenth Amendment is
to be enforced are not sufficiently drastic." 37

^Congressional Record, 6yth Congress, 2d Session, p. 5079.
**Ibid. 9 p. 5071.
Ibid., p. 5075.
tU, p. 5081.

The Neutrality of Congress 91

Here, certainly, was a familiar theme: the theme that
what the situation needed was not a vigorous effort to
enforce existing law, an effort which required thought
and money, but a fresh supply of drastic legislation,
which was cheap.

By a vote or 222 to 73 the House adopted the bill
for deportation and sent it to the Senate. 38

In this same year the Prohibition Bureau continued
to roll its heavy stone uphill, its budget having been in
creased over its budget for the previous year merely by a
nominal $4OO,ooo. 39

The Senate having shown no interest during 1922 in
the plan of the House to deport aliens, and criticism of
Congress on the score of its inaction having mounted,
meantime, rather than diminished, the House looked
elsewhere at the start of the fourth year of prohibition
for an opportunity to contribute something to the en
forcement of the law. Once more it overlooked the pos
sibility of bringing its appropriations into line with the
actual needs of the Prohibition Bureau, of placing
enough guards along the border to put an end to rum-
running or of giving the government the legal authority
and the staff of agents it needed in order to prevent
the diversion of industrial alcohol. Instead, having de
bated the question of aliens in 1922, the House now
turned its attention in the direction of the diplomatic
corps.

The issue arose early in the year when Mr. Cramton
of Michigan, who had been active in support of the

^Congressional Record, 6yth Congress, 2<1 Session, p. 5083.
39 The sums of money appropriated annually by Congress for
the enforcement of prohibition will be found in Appendix F.

92 The Dry Decade

deportation bill, introduced a resolution calling on the
Secretary of the Treasury to reveal what shipments of
intoxicating liquors had been received by the embassies
and legations in Washington since January, 1920, " giv
ing in connection with each such shipment the name
and office of each consignee, the country to which he
was accredited, the kind and quantity of liquor, the
place from which shipped to the 'United States, to whom
delivered by the Customs Service, and the date of such
delivery to the consignee or his representative/' 40

The question at issue, Mr. Cramton insisted, was by
no means trivial. Charges had been made that diplomat
ic liquor was pouring into the hands of bootleggers. In
Washington "the problem of enforcement of the Eight
eenth Amendment is said to be acutely affected by the
presence of these liquors." The question was a serious
one. "It is time Congress and the country knew the
facts about this, knew whether that which has been per
mitted as a courtesy is being used as a cover for abuses
seriously contributing to scandalous disregard of the
fundamental law of our land." 41

Introduced in the House on February 3d, Mr. Cram-
ton's resolution brought a reply from the Secretary of
the Treasury on February I3th. It was a well established
principle, this official pointed out, "that diplomatic
representatives of foreign governments are entitled to
free entry of goods as a matter of international comity
and usage. . . . The Treasury does not, of course, en
deavor to exercise control over the disposition of intoxi
cating liquors delivered to diplomatic representatives,
and it is manifest that it could not do so without in
fringing their diplomatic privileges and immunities.
*H. Res. 503, 67th Congress, 4th Session.
^Congressional Record, 6/th Congress, 4th Session, p. 3789.

The Neutrality of Congress 93

Nor could it properly give out any reports or other in
formation as to importations of intoxicating liquors by
diplomatic representatives, in view of their diplomatic
status and the protection of person and property to
which that entitles them/' 42

This statement from the Treasury was by no means
satisfactory to Mr. Cramton. The liquor record of the
embassies, he insisted, was a matter of importance to the
country. This record was available at the Treasury. "It
ought to be furnished to the Congress, the body which
has the responsibility of dealing with the question/'
Mr. Cramton therefore insisted that the House adopt
his resolution and call on the Treasury to divulge its
facts. 43

Opposition to this plan came from certain members
who were not convinced that it was wise. Mr. Parker of
New Jersey described the proposed resolution as unfair
to the embassies, and Mr. Garrett of Tennessee insisted
that the only result of it would be to promote "friction
and trouble and irritation on the part of foreign coun
tries/' 44 The House, however, was plainly in a mood for
action. A good deal of time had elapsed since the adop
tion of the alien deportation bill, and nothing had hap
pened in the meantime to convince the more restless
friends of prohibition that Congress was sternly resolved
to enforce the law.

By a vote of 189 to 113 the House adopted Mr.

Cramton's resolution and sent it to the Treasury, where

it came to rest. For since the Secretary of the Treasury

was required to divulge only such information as was

^Congressional Record, 6yth Congress, 4th Session, pp. 379"

3791-

*IVid.y p. 3791.
"Ilrid., pp. 379 2 "3793-

94 The Dry Decade

not incompatible with the public interest, and since he
had already expressed his opinion that it would be in
compatible with public interest to divulge this particular
information, there was nothing more to be done about
it. Here the matter ended.

This was the sole contribution made by Congress to
the cause of prohibition during the year 1923. No other
bill was adopted either in the Senate or the House. No
other bill was seriously discussed. Only one other bill
was referred to even casually on the floor of either House.
This bill was Senator Sterling's measure to place the
employees of the Prohibition Bureau under civil service
regulations.

The history of this legislation throws an instructive
light from another angle on the attitude of Congress
toward the experiment with prohibition.

When the Volstead Act was adopted in 1919, Con
gress, for reasons of its own, had chosen to leave the
appointment of all field agents in the hands of the Com
missioner of Internal Revenue, without regard to the
civil service rules applying to most other federal posi
tions.

This action had been vigorously opposed at the time
by the National Civil Service Reform League, which
filed its protest with the conference committee of both
Houses. 45 Later on, the Anti-Saloon League, which had
written at least as much of the Volstead Act as Mr.
Volstead, agreed that the provision exempting prohibi
tion agents from civil service rules was an unfortunate

York Times, September 14, 1919.

The Neutrality of Congress 95

provision, but insisted that it would have been impossi
ble to write the law in any other way.

"When the Volstead Act was passed/' said the secre
tary of the League, "neither the Anti-Saloon League nor
any other agency could have gotten into that law a
civil service provision, and for the League to have forced
the issue would have been to jeopardize the passage of
the bill/' 46 To this the vice-president of the National
Civil Service Reform League replied: "The plain fact is
that the Congressmen wanted the plunder and you let
them have it. ... You admit that the League, although
knowing the Congressmen's views were wrong, yielded
to them to get the bill passed. That means that you
bought the bill with Congressional patronage and paid
for it not with your own money but, far worse, with
offices paid out of taxes levied upon the people/' 47

This was the status which a long-continuing contro
versy had reached by 1923, but well before this time
the disadvantages of a political system of appointments
had seemed to many friends of the law to be a heavy
handicap to its enforcement. As early as the first year
of prohibition, a bill to place the staff of agents under
civil service regulations was introduced in the Senate
by Mr. Sterling of South Dakota, and a similar bill was
presented in the House by Mr. Tinkham of Massachu
setts, not as a partisan of prohibition, but as a champion
of the civil service. 48

These bills were ignored by Congress during 1921.
They were reintroduced in 1922. They were again ig
nored by Congress. Four sessions had passed without

46 New York Times, January 8, 1923.

47 Congressional Record, 6yth Congress, 4th Session, pp. 4S3 2 "

4533-
48 S. 4734, H. R. 15228, 66th Congress, 3d Session.

96 The Dry Decade

so much as a favorable report from a committee of either
House, when Mr. Tinkham, apparently losing hope of
any action by this method, attempted in December,
1922, to offer his bill as an amendment to a measure
carrying appropriations for the Prohibition Bureau,
This proposal was defeated by a vote of 56 to 7 a
majority of eight to one. 49 In 1923 both Mr. Tinkham's
bill and Mr. Sterling's bill were still alive, having car
ried over from the previous session. At the end of the
year, however, both bills were still locked in the files
of the same committees which had ignored them for four
years.

The fact is that members of Congress, endowed by
the Volstead Act with a particularly attractive form
of patronage, were extremely reluctant to surrender a
privilege which had been one of the happy by-products
of their foresight in adopting national prohibition. So
well established was the system of political control by
the end of the first few years of prohibition that even
the Anti-Saloon League found itself embarrassed by the
prerogatives claimed by Congress.

On February 10, 1923, Mr. Richard H. Dana, secre
tary of the National Civil Service Reform League, for
warded a letter to President Harding in which he said:
"Mr. Wayne B. Wheeler has recently twice told us that
when both he and the Prohibition Commissioner had
decided on and made a removal [of some agent], up
would turn a member of Congress who was responsible
for the appointment and insist that the man be rein
stated/' Mr. Wheeler was not officially part of the
government's enforcement service, but both he and the
Prohibition Commissioner had been forced "to yield

^Congressional Record, 6yth Congress, 4th Session, pp. 223-
224.

The Neutrality of Congress 97

against their better judgment, time and time again/' 50
This was February, 1923. One year after this letter
was written, the bills which proposed to take enforce
ment out of the hands of the politicians were still re
posing quietly in the files of two committees, while
prohibition celebrated its fourth birthday.

If a tourist in Washington had gone to the Capitol
in the early days of 1924, led there by his interest in this
fourth anniversary of a national crusade, he might have
been fortunate enough to hear a ringing demand for law
enforcement made on the floor of the Senate or the
House. If he had visited the office buildings which flank
the Capitol on either side, he would unquestionably
have been told by at least two of every three Congress
men with whom he talked that prohibition was the law
of the land, that it represented the settled convictions
of the American people, and that Congress was resolved
to leave no stone unturned in its effort to enforce the law.

All this, if the tourist were a friend of prohibition,
would have been immensely cheering. If he had gone to
the House or the Senate Document Room, however, to
discover precisely how many stones Congress had up
turned, in its interest in enforcement, he would have
been told that only one bill bearing in any way on the
question of prohibition in the United States had been
made a law in the first four years of this experiment:
the Willis-Campbell bill to prevent doctors from pre
scribing beer.

If he had gone to the Prohibition Bureau to discover
how much money Congress in its solicitude for the law

50 New York Times, March 6, 1923.

98 The Dry Decade

had appropriated for its enforcement, he would have
been told that appropriations for these four years had
averaged $6,981,250 a year. If he had gone to the Con
gressional Library to discover how much interest Con
gress had shown in such problems as the prosecution
of prohibition cases in the courts, the reorganization of
the government enforcement service, the regulation of
industrial alcohol, the prevention of illicit distilling and
the division of authority between Washington and
the states, he might have studied the pages of the Con
gressional Record for a year without finding any evidence
of a serious discussion of such questions.

So completely did Congress avoid these larger prob
lems of enforcement during the first four years of pro
hibition that even an amateur investigator with an hour
to spare in the Congressional Library would have been
tempted to suspect that the design was scarcely acci
dental. As a matter of fact, this avoidance of the larger
problems of enforcement was the deliberate policy of
Congress, undertaken with the approval of its most
important prohibition leaders. These leaders had al
ways advised Congress to adopt a policy of caution.
They had favored the omission of any reference to "use"
or "purchase" in the Eighteenth Amendment. They
had willingly accepted Mr. Wheeler's estimate of five
million dollars as ample for enforcement. They had
advised a policy of caution in appropriations in the
first years of the law. They still advised a policy of
caution in the early months of 1924.

When a proposal was made, precisely at this time,
for a sweeping investigation into every phase of the
problem of enforcement, it was the dry leaders in Con
gress who discouraged the idea that such an investiga
tion could possibly be useful. " In view of the marvelous

The Neutrality of Congress 99

achievements of the prohibition enforcement unit/'
said Senator Sheppard, author of the Eighteenth
Amendment, "a general investigation would be worse
than useless a waste of funds and energy and time.
Instead of a resolution of investigation, the unit should
have a vote of thanks." 51

Other leading prohibitionists in Congress echoed this
opinion. "The fact is," said Senator Willis of Ohio,
"that the effect of the inquiry proposed . . . is exactly
the thing which every person in this country who is .
opposed to the Eighteenth Amendment and to its ob
servance and enforcement would desire. What could
better operate to paralyze the forces of law enforcement
than such an inquiry as is here proposed?" 62

At first thought, this would seem to be a curious
argument to be made by friends of prohibition: the
argument that it would paralyze enforcement to find
out what was wrong with it. In reality, however, this
was strategically a sound position for the friends of the
law to take. A searching investigation into the record of
enforcement would have produced evidence to show that
in certain respects enforcement was casual and super
ficial, a matter of pretense rather than of fact. Such
evidence might have injured the prestige of the law
itself. It would have armed critics of the law with a new
weapon. It would have challenged Congress to accept
the logic of its own position and in the face of a con
siderable body of hostile opinion to embark upon an
uncompromising program of enforcement, whatever its
cost and whatever risks it might involve.

Far safer than a leap into the dark like this was the
policy which Congress had pursued to date: a cautious

^-Congressional Record, 68th Congress, 1st Session, p. 3237.
p. 3234.

too The Dry Decade

policy of skirting the real problems of enforcement and
saving its thunder for the aliens and the diplomats, of
calling for strict enforcement and meantime economizing
on appropriations which might have been unwelcome
to the public, of blaming the states for their failure to
take aggressive action and meantime setting the states
a perfect example of inaction.

It seems clear, in fact, that Congress had worked out
for itself by 1924 a position with which it was well
satisfied. It was, on the whole, a comfortable position,
far more satisfactory to the average member of the
majority than his position had ever been in the anxious
days before the Eighteenth Amendment, when Congress
was badgered by both wets and drys.

The wets were out of the running now, confronted
by the apparent impossibility of modification or repeal.
The drys might file an anxious protest now and then, but
they were effectively estopped from any real rebellion by
their desire to pronounce the law an unqualified success.
Meantime, Congress itself had abundant freedom from
all worry, a new type of patronage with which to build
up political machines at home and plenty of opportunity
to make speeches about patriotism, good citizenship
and unswerving loyalty to the Constitution.

This was more than a comfortable position. It was
very near ideal.

CHAPTER V
The Search for a Formula

HILE the law limped on, no President challenged
Congress to accept responsibility for its own legislation.
No President pointed out the difficulty of attempting
to enforce the law with an inadequate staff of agents.
No President volunteered to lead a crusade in behalf of
larger appropriations.

Whether the duty of initiating such a crusade prop
erly rested on the President is an open question. The
President was not a supreme prohibition agent. He
had many laws to enforce, many policies to frame, and
many bureaus to remember. It is possible that if he had
set himself at the task of persuading Congress to ap
propriate enough funds for a serious experiment with
the enforcement of prohibition, he would have had no
time for any other public business. It is also possible
that if he had succeeded in this effort he would have
capsized his own budget.

Without leading a crusade, however, the President
might have pointed out to Congress the anomaly of his
position. He was sworn to enforce the law. He could not
enforce the law with the equipment at his command.
By the end of the first four years of prohibition the
responsibilities of the executive department had enor
mously expanded; its personnel remained unequal to the

101

102 The Dry Decade

work which it was called upon to handle. With 3,374
employees on the pay roll of the Prohibition Bureau in
1924, it was theoretically the duty of the government to
prosecute 40,000 prohibition cases in the federal courts,
to guard 18,000 miles of seacoast and of border, to safe
guard against diversion 57,000,000 gallons of industrial
alcohol and, with what help it could obtain from the
states and municipalities, to prevent the manufacture
of intoxicating liquor in the kitchens or the basements of
20,000,000 homes.

In these circumstances it would have been logical
for any President in the early,years of prohibition to con
front Congress with an ultimatum, insisting either that
enough funds be made available for an honest effort to
administer the law or that Congress clear the executive
department of responsibility for its enforcement.

In the collected papers of the Presidents of the
United States the problem of enforcement is discussed
from various points of view, during the first four years
of prohibition, but with no suggestion of an ultima
tum.

In an address at Marion, Ohio, on July 4, 1922, Mr.
Harding insisted that obedience to the law was a duty
of good citizenship: "The Eighteenth Amendment
denies to a minority a fancied sense of personal liberty,
but the Amendment is the will of America and must be
sustained by the government and public opinion/' 1

In December of the same year, in his message to Con
gress, Mr. Harding repeated his conviction that prohibi-

x New York Times, July 5, 1922.

The Search for a Formula 103

tion represented the will of the American people and his
insistence that the law must be enforced, but suggested
that "in plain speaking there are conditions relating to
its enforcement which savor of nation-wide scandal."
Mr. Harding suggested two ways of improving these
conditions. He urged a wider respect for the law on the
part of private citizens. He also urged a larger contribu
tion to enforcement by the states and announced that
with this end in view he "purposed to invite the Gov
ernors of the states and territories, at an early oppor
tunity, to a conference with the federal executive
authority/' 2

In May of the following year, at a time when the
Legislature of New York had repealed its state enforce
ment law and the repeal bill was awaiting the veto or
approval of the Governor, Mr. Harding insisted that
"the executives of the nation and equally the executives
of the states are sworn to enforce the Constitution."
The Eighteenth Amendment had placed a joint respon
sibility upon both the federal and state governments.
"It will be obvious that many complex and extremely
difficult situations must arise if any of the states shall
decline to assume their part of the responsibility of
maintaining the Constitution and the laws enacted in
pursuance of it." 3

In June of this same year, in an address at Denver
during his last trip West, Mr. Harding again returned
to the question of state responsibility and the duty of
the individual citizen. Reports to the federal govern
ment indicated "a growing laxity on the part of state
authorities about enforcing the law," the President de
clared. "Doubtless this is due to a misconceived notion,
2 Message to Congress, December 8, 1922.
3 New York Times, May 17, 1923.

IO4 The Dry Decade

too widely entertained, that the federal government has
actually taken over the real responsibility/' As for the
responsibility of the individual citizen: "The example
of law defiance by those who can afford to buy and are
reckless enough to take the risk . . . may some day find
expression in far more serious form. I do not see how
any citizen who cherishes the protection of law in or
ganized society may feel himself secure when he himself
is the example of contempt for law/' 4

This was Mr. Harding's last comment on prohibition.
It was followed, a little later, by an address delivered
by Mr. Coolidge before the Governors' conference which
Mr. Harding had proposed in December, 1922, and
which now assembled in October, 1923. Mr. Coolidge
urged that the Governors take home with them a mes
sage to their legislatures that "neither the Eighteenth
Amendment nor the Prohibition Act undertakes to re
lieve the states of their responsibility relative to in
toxicating liquors." He discussed the responsibility
of the individual citizen. "The complementary duty to
enforcement of the law is obedience to the law." He
defined for the assembled Governors the central prob
lem of enforcement. "The main problem arises from
those who are bent on making money by an illegal traffic
in intoxicating liquors. If this could be eliminated, the
rest would be easy." 6

A few weeks later, in his message to Congress in
December, 1923, Mr. Coolidge repeated his plea to the
private citizen to obey the law, again urged the import
ance of a substantial contribution by the states, sug
gested as the contribution of the federal government "a
supply of swift power boats" and the strengthening of
4 New York Times, June 26, 1923.
*Ibid. 9 October 21, 1923.

The Search for a Formula 105

the Coast Guard and declared that "the major sources
of production should be rigidly regulated." 6

The Prohibition Bureau, charged with responsibility
for regulating the major sources of production, was at
this time operating on an appropriation of $8,250,000.
It had had $8,500,000 for the previous year, but in the
interest of post-war economy its appropriation had been
reduced in the budget submitted to Congress by the
executive department. 7

In the messages and public statements in which two
Presidents discussed the problem of enforcement in
the first four years of prohibition there was much com
ment on the duties of the states, some comment on the
duties of the federal government, and an earnest exhor
tation to the public to obey the law rather than to treat
it with indifference. In these statements and messages,
however, there was no attempt on the part of the Presi
dent to hold Congress responsible for setting both the
public and the states an example of the indifference
which the President deplored. There was no attempt to
discuss the problem of enforcement in relation to the
machinery of enforcement which Congress had provided,
or to dissociate the executive department from respon
sibility for inadequate appropriations.

As a matter of fact, the executive department was in
no position to dissociate itself from responsibility in the
matter of appropriations. For the estimates submitted
to Congress by successive Presidents for enforcement in

6 Message to Congress, December 6, 1923.
i Estimate of Appropriations for the Fiscal Year Ended June 30,
1924, p. 669.

io6 The Dry Decade

the early years of prohibition were as meager as the
funds actually allotted for the law by Congress.

For 1921, the first full year of prohibition, the execu
tive department submitted to Congress an estimate of
$4,000,000. 8 This was a full million dollars below Mr.
Wheeler's estimate and too small a sum for Congress.
Congress appropriated $4,750,000 at the start of the
year and added 1,600,000 later.

For the next four years the President's estimates
were 6,750,000, 9,250,000, 8,250,000 and 9>379>77
respectively; 9 the appropriations of Congress for these
same years were 6,750,000, 8,500,000, 8,250,000, and
io,oi2,330. 10

At the end of five years the President had recom
mended an average expenditure of 7,525,954. Congress
had actually appropriated 7,972,466. By a slight mar
gin, Congress had voted more funds for enforcement
than the President had requested in his budgets.

Meantime the White House, whoever its occupant,
made it a settled policy to remain aloof from such ques
tions, closely allied with appropriations, as the reorgan
ization of the prohibition service in the interest of
obtaining better results from any funds, however mod
est, which were voted for enforcement.

In December, 1922, after five sessions of Congress
had failed to result in any action on the proposal to
bring the Prohibition Bureau under civil service regula
tions, the National Civil Service Reform League came
to President Harding with a request that he issue an

^Estimate of Appropriations for the Fiscal Year Ended June jOy

1921, p. 63.

^Estimate of Appropriations for the Fiscal Years Ended June JO 9

1922, 1923, ig24, 1925, pp. 70, 59, 669, 686.
10 Cf. Appendix F.

The Search for a Formula 107

executive order placing agents of the Bureau in the
classified service.

The President had ample power to issue such an
order. His decree would have been as effective as action
taken by Congress itself, except for the possibility that
some later President might have issued a contrary order
restoring the spoils system in the appointment of en
forcement agents. Mr. Harding, however, declined to
interfere. "I am not yet convinced," he informed the
National Civil Service Reform League, "that this is
the wisest step to take to promote effective service/' 11
Mr. Coolidge likewise declined to interfere, suggesting
the danger that some later President might upset his
order if he issued it. 12

Similar reluctance on the part of the executive de
partment to intervene in the plans of Congress appeared
in the case of a proposal to transfer the Prohibition
Bureau from the Treasury Department to the Depart
ment of Justice. There had always been a considerable
body of expert opinion in favor of this change ulti
mately to be recommended, in 1930, by the Wickersham
commission. Even before the Volstead Act was adopted,
Mr. Carter Glass, as Secretary of the Treasury, had
sent a letter to the Judiciary Committee of the House of
Representatives, urging that the new bureau be set up
in the Department of Justice rather than in his own
department, since "the enforcement of prohibitory laws
is in no way a fiscal matter/' but "depends for its effec
tiveness principally on the steps which will be taken in
the courts throughout the country by the Department
of Justice." 13

n New York Times, March 7, 1923.
12 Message to Congress, December 3, 1924.
13 New York Times, June 21, 1919.

io8 The Dry Decade

Congress had chosen to ignore this advice, but certain
observers in an excellent position to watch the operation
of the law had continued to insist that the change in
departments was a matter of importance. Mr. Glass's
opinion on this point was reaffirmed by his successor,
Secretary Houston, who declared that the Treasury
should be given "the opportunity of centering its
attention upon its primary functions and should not be
encumbered with large activities unrelated to fiscal
operations/ 5 The senior circuit judges of the country,
basing their recommendations on abundant first-hand
experience in the courts, urged that the change be made
without delay, as much in the interest of the prohibition
law as of the Treasury Department. In a formal state
ment in which Chief Justice Taft concurred, they in
sisted that it " would make much for effectiveness in
enforcing the law" if "all the appropriations for enforce
ment should be expended under the direction of the
Attorney General/' 14

Nevertheless, despite the interest shown in this pro
posal by two Secretaries of the Treasury, the senior
circuit judges and the Chief Justice of the United States,
neither Mr. Harding nor Mr. Coolidge raised the ques
tion of this possible transfer in any of their public state
ments on the problem of enforcement, discussed its
relative advantages and disadvantages in any of their
messages to Congress, or expressed an opinion in these
messages on the merits of any one of several bills in
troduced in the Senate and the House, designed to effect
a change in the status of the Prohibition Bureau on the
initiative of Congress.

Lack of interest in such plans need not suggest that

either Mr. Harding or Mr. Coolidge lacked interest in

14 Associated Press dispatch, Washington, November 26, 1924.

The Search for a Formula 109

the question of enforcement. As Presidents, they could
not possibly lack interest in this question. As Presidents,
charged theoretically with enforcement of many thou
sand federal laws, they could not possibly fail to note
with interest that one federal law now resulted in an in
comparably larger number of prosecutions in the courts
than any other federal law. 15 No doubt both Presidents
felt a genuine concern over the readily available evidence
of disrespect for a law which had the sanction of the
Constitution. Mr. Harding warned the country on one
occasion that violations of the Prohibition Act "bred a
contempt for law" which might "ultimately destroy
the Republic." 16 Mr, Coolidge declared in his address
to the Governors' Conference in 1923 that in the ability
of the nation to enforce its laws "is revealed the life or
the death of the American ideal of self-government." 17

The fact remains, however, that while both Mr.
Harding and Mr. Coolidge were willing to discuss en
forcement in its broadest terms, as a matter of public
policy, good government and sound theory, they were
not prepared either to urge Congress to increase its
appropriations for the enforcement of a law which was
being widely violated or to interfere definitely enough
in any controversial question of enforcement to take
away from Congress full responsibility for establishing
the major principles of a policy of national prohibition.

Through these early years from 1920 to 1924 the ex
ecutive branch of the government was apparently con
tent to stand on the theory that since the legislative
branch had chosen to originate the experiment with na-

l3 Report of the Attorney General of the United States, fiscal year

ended June 30, 1925, pp. 134, 135, 138.
l6 Message to Congress, December 8, 1922.
17 New York Times, October 21, 1923.

no The Dry Decade

tional prohibition on its own initiative, it was plainly
the duty of the legislative branch, and not of the execu
tive branch, to carry the experiment successfully to its
conclusion.
This policy was entirely satisfactory to Congress.

For a hard-pressed Prohibition Bureau which could
feed, meantime, neither on the inexpensive oratory of
Congress nor on the exhortations addressed by succes
sive Presidents to the public, the early years of this
adventure were not easy ones. The Prohibition Bureau
could not ignore the concrete problems of enforcement
which Presidents had left to Congress and Congress had
set aside in order to devote its time and energy to aliens
and the diplomatic corps. The Prohibition Bureau was
forced to attack these problems as best it could, with a
staff which had an average of 3,060 agents for the years
from 1920 to 1925, including clerks and stenographers
as well as active agents in the field. 18

Obviously with such a staff the activities of the
Prohibition Bureau were strictly circumscribed. There
were certain things which it could do. There were other
things which lay beyond its power to accomplish. It is
possible to define the authority of the Bureau with some
precision by the end of 1925. For at this juncture in the
experiment with the Eighteenth Amendment and the
Volstead Act, a subcommittee of the Senate Committee
on the Judiciary initiated a series of hearings which,
while not intended to explore the whole problem of en-

l *Report of the Commissioner of Internal Revenue, fiscal years
ended June 30, 1920, 1921, 1922/1923, 1924, 1925.

The Search for a Formula in

forcement, brought to the witness stand the chief en
forcement officers of the government, including General
Lincoln C. Andrews, at this time Assistant Secretary of
the Treasury, in charge of prohibition work, and Dr.
James M. Doran, chief of the Chemical Division of the
Prohibition Bureau.

The testimony of these witnesses supplies an accurate
index of the ability of the government to deal in 1925
with the five chief sources of illegal liquor which had
constituted its chief problem from the outset.

As early as January, 1920, the Prohibition Bureau
had drawn up regulations to control the first potential
source of supply which threatened to become a problem:
the prescription of alcohol by doctors and the sale of
alcohol by druggists. These regulations were accom
panied by a permit system. The Bureau also required
records to be kept of the character of the illnesses of
millions of sick people throughout the country, the
amount of alcohol prescribed for them following a diag
nosis by their doctors and the precise form in which
this alcohol was given.

During the first six years of enforcement the Bureau
issued an average of 63,891 permits annually to doctors.
It revoked an average of 169 permits. It issued various
instructions concerning the use of whisky as first-aid and
raided various drugstores. It was obvious, however, that
if the Bureau were to hunt in the haystack of 11,000,000
prescriptions issued every year for cases which seemed to
be suspicious, and to subject these cases to first-hand
examination, it needed a large staff of agents. If it

The Dry Decade

hoped to prevent the cutting of whisky in drug stores, a
practice not appearing in the records, it needed still
more agents.

These agents it did not have. At the hearings of the
Senate subcommittee it was testified that by the end
of 1925 the government had only 17 inspectors to keep
check upon 1,200 drugstores and to investigate approxi
mately a million prescriptions issued every year by 5,100
doctors in New York City. 19 It was testified by the
Assistant Secretary of the Treasury that in New York
and in other large cities the control of medicinal liquor
was inadequate and its misuse extensive.

"I am working now on the details of a law which I
shall ask Congress to consider," said General Andrews,
"which will enable me to control the distribution of
medicinal whisky, which I cannot do now." 20

The second source of supply presenting a problem
for the Prohibition Bureau was the brewery manufac
turing illegal beer. The problem here was similar to the
problem of preventing the misuse of medicinal liquor,
since it imposed upon the Prohibition Bureau an effort
to enforce regulations with a staff of agents which the
Bureau did not have.

In this case the regulations were concerned with the
methods by which near-beer was to be produced and
the methods by which it was to be kept within the
strict limitations of the Volstead Act. The production
of near-beer was small by comparison with the produc-

l9 Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 69th Congress, 1st Session, pp. 119-121.
Ibid., pp. 70-71.

The Search for a Formula 113

tion of real beer before the adoption of the Eighteenth
Amendment. Nevertheless, 956,220,919 gallons of near-
beer were produced during the first five years of pro
hibition. 21 All of this near-beer had first been manu
factured as genuine beer with a higher alcoholic content.
The problem of the Prohibition Bureau had been to see
that all of it had been legally de-alcoholized. It was
apparent in the circumstances that the government
lacked agents for this work. "There is every reason
to believe," said Mr. Wayne B. Wheeler at this time,
"that in several hundred plants large amounts of high-
powered beer are made and distributed to the bootleg
trade/ 322

So far from satisfactory was the situation at the end
of 1925 that General Andrews appealed to the Senate
subcommittee to enlarge his staff of agents and to enact
new legislation which would enable him both "to keep
high-test beer off the market" and "to protect the hon
est brewer." 23 With this end in view he urged an amend
ment of the Volstead Act giving the government power
to apply for an injunction against any brewery violating
the rules of the Prohibition Bureau and additional power
to place brewery apparatus under lock and key when it
was not in use. 24

The third source of supply of the bootlegger was
liquor smuggled along the seacoasts and across the

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 52.
22 New York Times, April 4, 1926.
^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, 1st Session, p. 69.
*Ittd. 9 p. 7-

H4 The Dry Decade

borders. Until 1924 the Prohibition Bureau received only
a limited amount of assistance from the Coast Guard. In
1924, however, Congress reorganized the Coast Guard,
permitting a temporary increase in its personnel and
transferring to its control twenty second-class destroy
ers to be reconditioned at a cost of $i3,ooo,ooo. 25

This fleet was intended to make war upon Rum Row.
To aid it in this effort the State Department had under
taken to negotiate treaties which would broaden the
authority of Coast Guard vessels to search suspected
ships at sea. Such efforts as this took time. It was in
July, 1922, that the American government first broached
the question of a treaty with Great Britain, 26 and not
until May 22, 1924, that a treaty setting a new search
limit at "an hour's steaming distance" from the sea-
coast was accepted by both parties, signed, sealed,
ratified by the Senate and formally proclaimed. Other
treaties were negotiated by the end of 1924 with the
governments of France, Germany, Italy, Sweden, Nor
way, Denmark, Panama, and Holland.

Meantime, to prevent smuggling of liquor across the
inland borders, the Prohibition Bureau had in the early
years of its enforcement work a staff of 35 men to post
along a Mexican frontier 1,744 miles in length (and to
cover the states of Texas, New Mexico, and Arizona,
incidentally) 27 and a larger and more variable staff for
the Canadian frontier. It also had assistance from
Customs Service agents not otherwise engaged, from
Coast Guard vessels operating in the Great Lakes and
from a convention signed with the government of Can-

^H. R. 6815, 68th Congress, 1st Session.
^New York Times, July 25, 1922,

27 Prohibition Commissioner Kramer, New York Times,
April 27, 1921.

The Search for a Formula 115

ada providing for the notification of American officials
when any vessel cleared from a Canadian port with a
cargo of liquor known to be, or suspected to be, intended
for shipment to the United States.

The cooperation of the Coast Guard and the various
treaties negotiated by the government were unques
tionably of assistance to the Prohibition Bureau in the
prevention of rum-running. They were not a satisfactory
substitute, however, for a force of agents adequate to
maintain an effective watch over a long seacoast and
border. In 1923 the Department of Commerce under
Mr. Hoover estimated that the value of liquor smuggled
into the United States amounted to $20,000,000 in
I922. 28 For 1923 it increased its estimate to $30,000,000,
and for 1924 to $40,000,000, with the comment that "in
the opinion of officials connected with the Customs
Service this is a low estimate." 29

Asked at the hearings of the Senate subcommittee to
estimate what proportion of liquor smuggled into the
United States had actually been caught by the end of
1925, General Andrews suggested five per cent. 30

The fourth problem of the Prohibition Bureau was
industrial alcohol. Year by year the production of this
type of alcohol had been increasing at a rapidly accelera
ting rate, either as the result of the expansion of the
chemical industry or the expansion of the bootlegging

28 New York Times, September 17, 1923.

29 The Balance of International Payments of the United States in

1924, Department of Commerce, April, 1925.
^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, 1st Session, pp. 91-92.

n6 The Dry Decade

industry or very probably of both. In 1920, the first
year of prohibition, 28,000,000 gallons of industrial
alcohol were manufactured in the United States. 31 By
1923, the fourth year of prohibition, the production of
industrial alcohol had more than doubled. In 1924 it
increased to 67,000,000 gallons; and in 1925 it reached
81,000,000 gallons, an increase in six years of 189 per
cent.

In an effort to prevent diversion, the Prohibition
Bureau established various formulas designed to make
this alcohol undrinkable. By 1923 it had created 76 such
formulas, varying with the purpose to which the alcohol
was intended to be put. Some of these formulas used
comparatively harmless denaturants such as oil of pep
permint and menthol crystals or lavender and soft soap.
Others used poisons as violent as iodine, benzine, and
sulphuric acid. 32 On the chance, however, that not even
iodine, benzine, and sulphuric acid would carry indus
trial alcohol through to a wholly legal end, the Prohibi
tion Bureau elaborated the permit system in vogue
before the adoption of the Eighteenth Amendment, re
quiring applicants for the use of alcohol to give some
evidence of the legality of their intentions and to post
a bond to be forfeited in case of misbehavior.

The system itself was logical, but from the outset it
encountered difficulties. In the first place, the law gave
the Prohibition Bureau no power to trace industrial
alcohol down the line of its widely varied uses beyond
the first purchase of alcoholic products manufactured by
firms or individuals holding permits.

31 The figures cited here are quoted from Industrial Alcohol,
United States Treasury Department, 1930, p. 48.

32 Prohibition Commissioner Haynes, New York Times, July
27, 1923,

The Search for a Formula 117

In the second place, even if the Bureau had had this
power, it lacked the staff of agents required to follow
60,000,000 gallons or 80,000,000 gallons of alcohol
through the ramification of many purchases and repur
chases, from the time it left the thirty denaturing plants
which manufactured it until it reached the ultimate
consumer.

In the third place, when the Bureau discovered cases
of diversion, it was compelled to initiate elaborate in
vestigations in order to obtain evidence to justify
revocation of a permit. As the Bureau itself pointed out:
"Mere suspicion that a permittee is not keeping faith
with the government is not sufficient under the law to
warrant revocation. The law gives permit holders cer
tain legal rights and the burden of proof is upon the
government in instances of alleged diversion of alcohol
or for other flagrant permit abuses/ 733

In these circumstances, it is evident that an elaborate
code of 76 denaturing formulas and an equally elaborate
code of rules and regulations governing permits merely
drew up a plan for an effort to enforce the law and did
not actually constitute enforcement in themselves.
Formulas were useful: they handicapped bootleggers at
least to the extent of compelling them to "wash 5 '
industrial alcohol before turning it into expensive liquors
for a public ready to pay fancy prices. Rules and regula
tions sketched the outline of a system of control which
was founded on valuable experience. These rules, how
ever, were not self-executing. They required the applica
tion of constant pressure at many different points.

Proof of this fact is to be found in the actual results
of the effort to prevent diversion. Testifying before

^Industrial Alcohol, United States Treasury Department,
1930, p. 29.

n8 The Dry Decade

the subcommittee of the Senate on conditions existing
at the end of 1925, General Andrews described the
thirty denaturing plants which manufactured industrial
alcohol as "nothing more or less than bootlegging
organizations" and estimated the amount of alcohol
illegally diverted in 1925, despite the best efforts of the
Prohibition Bureau, at "somewhere in the vicinity of
13,000,000 to 15,000,000 gallons/' 34

A much higher estimate of diversion was submitted to
the subcommittee by the United States Attorney for the
Southern District of New York, who placed his figure at
from 50,000,000 to 60,000,000 gallons. 35 No estimate
demonstrably accurate was available, for the reason that
bootleggers filed no statistics with the government and
all figures were necessarily derived from a process of
estimating how much of the enormously increased pro
duction of industrial alcohol could reasonably be ex
plained by the growth of new industries requiring al
cohol for legitimate purposes.

One gallon of industrial alcohol diverted into the
hands of Bootleggers was described by officials of the
government as sufficient, when watered down, colored,
and doctored, to manufacture a minimum of three gal
lons of bogus liquor. 36

Accepting as reliable the smaller estimate of diversion
submitted to the Senate subcommittee by General
Andrews and concurred in by the chief of the Chemical
Division of the Prohibition Bureau, 37 enough industrial
alcohol was being poured into the hands of an illegal

^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, 1st Session, pp. 68, 479.
**IKd. 9 p. 182.
3& Ibid., p. 113.
p. 1313.

The Search for a Formula 119

trade by the end of 1925 to manufacture from
156,000,000 to 180,000,000 quarts of liquor every year.

The last of the five chief sources of supply which
constituted a problem for the Prohibition Bureau was
the illicit still. Potentially this was by far the largest
source. It was also the source with which the Prohibition
Bureau was least equipped to deal.

With a staff whose personnel averaged 3,060 men
during the first six years of enforcement, the Prohibition
Bureau was plainly in no position to suppress illicit stills
all over the United States. Including its office help, it
had one agent to every 972 square miles of territory.
Since such a staff could not effectively patrol the coun
try, the Prohibition Bureau fell back upon the only type
of action available to it within the limits of its appropria
tions :

(a) It appealed to the states and municipalities to
help round out an inadequate staff of federal agents by
using their own officers to enforce the law. "Special
attention was paid," said one of the early reports of the
Bureau, "to securing cooperation from prosecuting
attorneys, sheriffs, police departments and peace of
ficers." 38

(b) It set at the task of detecting and raiding stills as
large a part of its own staff as could be spared from
other duties. Considering the number of men available
for this work, the record of achievement is impressive.
In 1925 agents of the Prohibition Bureau seized 29,877

^Report of the Commissioner of Internal Revenue, fiscal year
ended June 30, 1923, p. 24.

120 The Dry Decade

distilleries and stills, 7,850 still worms and 134,810
fermenters. 39

(c) It attempted to prevent the use of domestic stills
in private homes by warning the public that the Vol
stead Act (Title II, Section 18) made it "unlawful to
advertise, manufacture, sell, or possess for sale any uten
sil, contrivance, machine, preparation, compound, tab
let, substance, formula, direction or recipe advertised,
designed or intended for use in the unlawful manufac
ture of intoxicating liquor."

(d) It issued various decrees with respect to methods
of home manufacture which were and were not legal.
For while the Volstead Act had been precise in its pro
vision exempting only cider and fruit juices from a limi
tation of one half of one per cent of alcohol, there were
inevitably certain cases on the border line. Thus the
Prohibition Bureau, called upon in 1922 to decide the
fate of dandelion wine, ruled that this beverage was not
legal, since the dandelion was not a fruit. 40

It is clear, however, that to bar dandelions from kit
chen kettles by administrative fiat was one thing, and to
prevent a dandelion on a lawn two thousand miles from
Washington from being snipped in the dead of night by
a housewife bent on making dandelion wine was a very
different matter. With a staff of 3,060 agents to cover
the United States, the Prohibition Bureau had no actual
power to execute the rules it framed concerning liquor
made by a process of home manufacture. It had no
power to interfere effectively with the sale of "utensils,
contrivances or machines" intended to be used in pri
vate homes, though the Volstead Act had made such

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 64.
40 New York Times, May 18, 1922.

The Search for a Formula 121

sale illegal. It had no power to break up a commercial
traffic which reinvested its capital in new equipment as
rapidly as its old equipment was confiscated by the
government.

Asked by the subcommittee of the Senate to report on
the success achieved in suppressing illicit stills by the
end of 1925, General Andrews estimated that of large
commercial stills his Bureau had managed to seize "a
fair percentage" and that of smaller stills "I should
imagine that we did not get one in ten/' 41

Since 29,877 stills of all sorts had been seized in 1925
and since these stills represented no more than "a fair
percentage" of large commercial stills and "one in ten"
of smaller stills, it is clear that the Prohibition Bureau
itself believed that a great many more than 29,877 stills
remained in operation.

Approximately how many stills the Bureau did not
attempt to guess.

But if there had been no more than 29,000 stills, and
if they had all been small stills with a capacity of ten
gallons daily, the Prohibition Bureau would have pic
tured here a source of supply which was capable of
producing a hundred million gallons of hard liquor every
year, provided it could find a market for its wares.

Plainly the Prohibition Bureau had not succeeded in
shutting off the sources of an illicit trade by the end of
1925. Medicinal liquor and high-test beer were still
troublesome enough for the Assistant Secretary of the
Treasury to plan new legislation to supplement the

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, pp. 447, 465-466.

122 The Dry Decade

Volstead Act. On the authority of the same official, not
more than five per cent of the liquor smuggled across
the borders had been seized. Enough industrial alcohol
was being diverted into the hands of violators of the
law to manufacture on the government's own estimate
150,000,000 quarts of liquor annually. Lacking an
adequate staff of its own and effective support from
various states and municipalities, the Prohibition
Bureau could only hope to harry the owners of illicit
stills and cause them to shift their base of operations as
frequently as possible.

So far was the Bureau from a successful solution of
its chief problems that the question arises whether its
real function in the early years of prohibition was pro
perly understood. Called upon suddenly to undertake
a formidable task with which the federal government
had no previous experience, confronted by stubborn
opposition in many urban sections of the country, and
effectively hamstrung by Congress in the matter of
appropriations, it seems likely that the real mission of
the Bureau was not to enforce the law effectively, some
thing which could not be done with the funds at its
disposal, but to go through the motions of enough en
forcement to give Congress a clean bill of health and sim
ultaneously to encourage that part of the public which
liked the law to believe that better days lay just ahead.

On this policy the Prohibition Bureau had embarked
at the start of the adventure, probably less with a con
scious desire to vindicate Congress than because the
early heads of the Bureau were themselves sincere
friends of the law and men of a profoundly optimistic
cast of mind.

Mr. John F. Kramer, the first Commissioner of Pro
hibition, had begun his administration by assuring the

The Search for a Formula 123

country that the government would see that liquor was
not manufactured, "nor sold, nor given away, nor
hauled in anything on the surface of the earth nor under
the sea nor in the air." 42

Major Roy A. Haynes, who succeeded Mr. Kramer in
1921, keyed his own statements to the public in the
same sanguine mood, in various cheerful prophecies
which stand in sharp contrast to the humdrum figures
later submitted to the Senate subcommittee by General
Andrews. From the bulletins of Major Haynes, extend
ing over a period of several important years in this ex
periment, flowed constant encouragement to the friends
of prohibition to believe that the corner had been turned
at last and that satisfactory enforcement of the law
required only patience and a little courage.

Thus in January, 1922, Mr. Haynes announced that
enforcement of the law was "rapidly approaching the
highest point of its efficiency " and that "the Amend
ment is being enforced to an even greater extent than
many of its devoted friends anticipated/' 43 During the
same month he gave to the press a statement citing fig
ures to prove that 17,500,000 people had already stopped
drinking as a result of prohibition "a wonderful rec
ord/' 44 In September of the same year, addressing a
convention at Winona Lake, Indiana, he declared that
while the cost of enforcing the law during the previous
twelve months had been 9,500,000, the "various
fines, assessments and taxes amounted to nearly
$62,000,000 " 45 a return on each dollar invested of

York Sun, January 4, 1920. Cf. Chapter III, supra.
43 New York Times, January 9 and 15, 1922.
^Ibid.y January 15, 1922.

45 Associated Press dispatch, Winona Lake, Ind., September 2,
1922.

124 The Dry Decade

better than six to one. In a message addressed to the
country a few months later, on Christmas Eve, he an
nounced his discovery that "the home brew fad is taking
its final gasp/' 46

This cycle of good cheer continued uninterruptedly
from one year to another. In April, 1923, Major Haynes
informed the public that "bootleg patronage has fallen
off more than fifty per cent" and that "the redistillation
of denatured alcohol is now impossible/' 47 In July he
announced that moonshining in the cities was "on the
wane"; "there is less of it to-day than at any time since
national prohibition became the law." 48 In August he
declared that the business of bootlegging had reached a
"desperate plight"; "the death rattle has begun/' 49
By December he was certain that the progress made by
the Prohibition Bureau had been "nothing short of
marvelous. . . . There is but little open and above-
board drinking anywhere." 50

Whether these confident reports from headquarters
were interpreted by the public as a running comment on
the actual conditions of enforcement, or whether they
seemed to carry in themselves evidence of ardent and
devoted propaganda, it is impossible to say.

In any case, breathing hope and enthusiasm and as
surance that all was well, they must have made good
reading for the dry majority of Congress. For they sug
gested that nothing more was needed to enforce this law
than had already been provided.

^Associated Press dispatch, Washington, December 24,
1922. *

*Ibid., April 9, 1923.

48 New York Times, July 19, 1923.

id. y August 265 1923.

rid; December 24, 1923.

The Search for a Formula 125

This was precisely the kind of talk that Congress
liked to hear.

Certainly if the Prohibition Bureau aimed to do
nothing else during these early years, it aimed at least to
convince the country that its goal lay always near at
hand and that one more trial would bring success. Time
and again, whenever the public showed signs of losing
faith that this law could ever be enforced successfully,
the Prohibition Bureau either announced the start of
some fresh effort or reorganized its work on some new
plan designed to win back confidence.

The orbit of these reorganizations was familiar. It
would be complained in the press or in the pulpit that
in some locality the law was being flouted on all sides.
A tired and somewhat disillusioned official of the Pro
hibition Bureau would admit that without adequate
funds the problem was too much for him. A new official
would be appointed in his place. The new official would
come to his work with high hope and boundless energy.
He would promptly reorganize whatever organization
his predecessor had created and begin afresh. He would
ask the public to be patient enough to give his plan a
trial. The public would sit back to watch. Gradually
conditions would return to normal. The public would
again begin to doubt the possibility of enforcing the law
successfully. The official would confess his heavy handi
caps. A new official would be appointed. Travel in a
circle would begin afresh.

Thus, in New York City, for example, Mr. James L.
Shevlin, the first federal administrator appointed to
this difficult assignment, admitted at the end of seven
unsuccessful months in office that liquor was being

126 The Dry Decade

widely sold throughout the city and that with a staff of
two hundred agents there was very little he could do to
stop it. 51 One month later, Mr, Shevlin was transferred
from Broadway to El Paso "in the interest of the ser
vice." 52 He was succeeded by Mr. Frank L. Boyd, who
permitted the press to understand that he was forming
an entirely new line of attack on the problem of enforce
ment, designed "to make illicit traffickers sit up and
take notice/' 53 Mr. Boyd lasted for three months. He
took leave of his work with the statement that it was "a
thankless and a hopeless task." 64 He was succeeded by
Mr. Daniel L. Chapin, who came into office with new
plans of the right way to enforce the law. S5 Mr. Chapin
lasted for three months. He was succeeded by Mr.
Ernest Langley, who announced that he would shake up
Mr. Chapin's staff, set new standards for his agents,
and attempt at last to give the city real enforcement. 56
Meantime, in the state as well as in the city, control
changed hands as often as it was necessary to inject
fresh enthusiasm into the experiment for the reassurance
of the public. Mr. Charles R. O'Connor, the first Pro
hibition Director for the State of New York, remained
in office for the exceptional period of sixteen months.
He resigned in May, 1921, declaring that the problem of
enforcement had "seemed at times well-nigh hope
less." 57 He was succeeded by Mr. Harold L. Hart, who
promptly announced that if the law was to be enforced it

61 New York Times, August 12, 1920.
id., September 1 6, 1920.

w New York Herald, December 17, 1920.
55 New York Times, February 6, 1921.
Ibid. y March 20, 1921.
5r lbid., May 23, 1921.

The Search for a Formula 127

would be necessary to "name a practically new force of
inspectors and entirely reorganize the office force/' 58 Mr.
Hart lasted from May until October. He was succeeded
by Mr. E. C. Yellowley, who lasted from October to
December, long enough to dismiss many of Mr. Hart's
agents and to reorganize his methods. 59 Mr. Yellowley
was succeeded by Mr. Ralph A. Day, who changed Mr.
Yellowley' s plans and dismissed fifty of his agents on
the ground that they were incompetent for public
service. 60

Nowhere else in the whole field of federal administra
tion did public offices change hands like this or sudden
reorganizations follow one another in such profusion.
The experience of New York State and New York City
could be duplicated in the experience of other states
and other cities. The office of Federal Prohibition Com
missioner itself changed hands with the necessities of the
occasion.

At the end of a year the early confidence of the first
commissioner, Mr. Kramer, had been gnawed by certain
doubts concerning his ability to achieve the task upon
which he had embarked in the best of faith. Prohibition,
he now declared, seemed to have been "to some extent
forced upon whole states and especially upon large cities
in which people had no sympathy whatever with the
idea; in fact, they scarcely knew what the term prohibi
tion meant." This hostility had created, "to my way of
thinking/' Mr. Kramer said, "the most difficult problem
that any state ever undertook to solve/' An enormous
market had stimulated sources of production. Home
stills were flourishing. "We haven't devoted much at-

68 New York Times, July 10, 1921.

59 /HJ., October 21, 1921.

Ibid., October 5, 1922.

128 The Dry Decade

tention to this question. In fact, we are somewhat afraid
to do so, lest we might thereby create a reaction against
the law/ 561

At this point, having uttered various heresies not in
keeping with his role, Mr. Kramer took leave of public
office: to be succeeded by Major Haynes, who at once
discarded the plans developed by his predecessor, de
clared that Mr. Kramer's theory of organization had
been "clearly demonstrated after a thorough trial to be
a failure/' 62 and created an entirely new system of or
ganization of his own : only to have this system promptly
torn apart by General Andrews, who declared that it
was "not accomplishing results" and that it was im
perative to substitute another system. 63

Over and over this process was repeated, in an effort
to find the magic formula of a reorganization so ingeni
ous that it would somehow compensate for an insuffi
cient staff of agents. Time and again fresh courage was
pumped into the adventure by a constant shift in per
sonnel. Change followed change. Another reorganization
reorganized what an earlier reorganization had just ac
complished. A new bulletin predicting that this time
the key to enforcement had at last been found was
broadcast to the public before the echo of its predecessor
died. To the best of its ability the Prohibition Bureau
kept alive the faith that despite a paralyzing lack of men
and money its task could be accomplished.

It was uphill work, but there was no other course the
Prohibition Bureau could have followed. It had no real
alternative in the matter of enforcement. The pattern of

a New York Times, April 27, 1921,
^Associated Press dispatch, Washington, June 17, 1921.
^Hearings of a Subcommittee of the Senate Committee on the
Judiciary y 69th Congress, 1st Session, p. 46.

The Search for a Formula 129

enforcement was set by greater powers than the relatively
unimportant captains of an experimental subdivision of
the Treasury Department. It was set in the White
House by Presidents with too many other irons in the
fire to propose in their budgets the sums of money which
alone could have launched a determined effort to en
force the law. It was set in the offices of party bosses
who raided the Prohibition Bureau for jobs for their ward
heelers and protection for their friends. It was set in the
halls of Congress by a dry majority which had at all
times ample power to multiply its appropriations but
consistently refused to act.

The law limped on. It was scarcely the business of the
Prohibition Bureau to quarrel with its peers.

CHAPTER VI
The Pattern of Enforcement

EITHER the wets nor the drys were satisfied with the
situation existing at the end of 1925. The willingness of
Congress to let the law shift for itself, the failure of any
President to raise the issue of increased appropriations
and the inadequacy of any means available to the
Prohibition Bureau created a vacuum which the casual
efforts of local enforcement officers did not fill. The wets
insisted that the law had broken down. The drys reluc
tantly admitted that conditions were not what they
desired. Without losing faith either in the merit of the
law or in the theory that only a stubborn minority per
sisted in disobeying it, they found themselves propelled
into an increasingly critical attitude toward the methods
employed by the government in its effort at enforce
ment.

This change was clearly reflected in various state
ments issued from prohibition headquarters in 1925.
In place of the earlier assurances that enforcement was
steadily gaining ground, that there was no need for
friends of the law to be concerned and that a dry Con
gress could be relied upon to do its duty, there now ap
peared a series of statements indicative of increasing
restlessness over the course which events had followed.

On behalf of the Anti-Saloon League Mr. Wheeler

130

The Pattern of Enforcement 131

complained that due to the failure of Congress to take
adequate steps to enforce the law "six million gallons
of industrial alcohol reached the bootleggers last
year." 1

On behalf of the National Temperance Bureau Mr.
Edwin C. Dinwiddie described the law as the victim of
abuse by people in official circles who should have been
its friends: "The situation is serious. Cabinet officers,
Senators and other legislators and leaders find it easy to
disobey the law themselves and they have been known
to use their influence to free their henchmen after they
have been caught in the toils of the law/' 2

On behalf of the United Committee for Prohibi
tion Enforcement Mr. Clinton Howard insisted that
"prohibition has been enforced half-heartedly at best
and with definite intention that it be broken, at worst;
the law has not been enforced beyond the point where,
in the opinion of the enforcers, it would hurt the party
in power by enforcing it." 8

Meantime, a militant prohibition organization active
ly at work in the field reported that "rampant lawless
ness" was "increasing by leaps and bounds" in a
theoretically dry section of the country:

"Dubuque boasts of 41,000 citizens and 1,000 boot
leggers," said a statement issued in May, 1925, by the
Anti-Saloon League of Iowa, "not to mention the count
less moonshiners who operate in the city and vicinity.
So keen has become the competition among the hun
dreds of moonshiners who live on the jungle-like isles of
the Mississippi and in the fastnesses of the heavily
wooded bluffs that the largest manufacturer cut his
Associated Press dispatch, Washington, March 8, 1925.
2 New York Times, November 6, 1925.
id. y December 4, 1925.

132 The Dry Decade

wholesale price in half during the past three weeks. The
islands and bluffs are swarming with stills, some of
which turn out huge quantities of liquor." 4

Such statements as these were fairly typical of an
increasingly persuasive suspicion on the part of the
prohibition organizations that more could be done to
enforce the law than was being done in 1925.

Meantime, the actual pattern of enforcement had
achieved a certain familiar outline after six years of
experiment. By 1925 the first important symbol of
enforcement was the "drive."

It was more or less inevitable that this should be the
case. If Congress had equipped the executive depart
ment with a different type of machinery for enforce
ment of the law, the administration of prohibition in
the United States might have borne more resemblance
to the administration of the average law than was ap
parent in the circumstances. Drives were a new phenom
enon. Various other laws which involved the risk of
evasion by many thousand people were enforced with
out recourse to sporadic round-ups. This was true, for
example, of the pure food laws and the income tax. In
the case of such legislation Congress had struck an
equilibrium between the amount of willing compliance
which it could expect on the public's part and the
amount of force which had to be applied in order to
coerce that fraction of the public which declined to
accept the law as reasonable and just.
No such equilibrium had been achieved by Congress

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 383.

The Pattern of Enforcement 133

in the case of prohibition. Public opinion was seriously
divided. Lacking a close approximation to unanimous
opinion, and attempting to apply coercion with too
small a staff to meet all of its problems simultaneously,
the federal government was constantly compelled to
mobilize part of its staff in some special place for the
achievement of some special purpose, neglecting, mean
time, various other problems which it hoped to take up
later.

This was the origin of the prohibition drive, and by
1925 the regular routine of enforcement was to pyramid
fresh offensives on familiar fronts as rapidly as the
Prohibition Bureau could complete an orbit of its more
stubborn problems. One favorite battleground for such
an effort was along the Atlantic Coast, where a flotilla
of rum-runners was constantly reassembling at a differ
ent point from the point at which it was dispersed. A
second battleground was along the borderline between
Canada and the United States, where drive followed
drive with unfailing regularity, as frequently as the
Prohibition Bureau could devote its major interest to
the problem of preventing smuggling.

The first such drive began in August, 1921, when
it was announced that federal and state officials would
pool their forces in an effort to put an end to an illicit
traffic which had reached formidable proportions during
the first eighteen months of prohibition. 5

The second drive began in the summer of the follow
ing year, when a fresh supply of men, this time rein
forced with "naval craft, Coast Guard cutters, airships,
armored trucks and high-powered motor cars' 5 was
sent to the border by the federal government. 6
Associated Press dispatch, Detroit, August 15, 1921.
6 New York Times, July 29, 1922.

134 The Dr Y Decade

The third drive followed in June, 1923, when it was
reported that "every available prohibition agent in the
country" would be brought to Detroit for a fresh effort. 7

The fourth drive began in December of the same
year, when "the greatest assemblage of federal enforce
ment officers ever seen in Michigan" gathered at
Detroit; 8 the fifth in May, 1925, when "for the first time
all the government's activities" were "being concen
trated on the border in a terrific drive"; 9 and the sixth
in the following August, when it was announced that
"no limit" would be placed on the size of the border
patrol "at every strategic point between the Great
Lakes and the Atlantic," 10

None of these drives, as was promptly demonstrated
by the necessity of initiating its successor, succeeded in
reaching its objective. None could reasonably be ex
pected to furnish a satisfactory substitute for a staff of
agents large enough to deal with the problem of smug
gling systematically rather than in sudden spurts.

The fact remains that when one drive had failed, the
Prohibition Bureau had no recourse save to start
another.

On a local scale the counterpart of the national drive
was the endless series of minor raids initiated by the
same inadequate staff of federal agents wherever they
suspected that liquor was being sold after it had crossed
the border or after it was ready for distribution from
some domestic source. Such raids were directed at a

Associated Press dispatch, Detroit, June 13, 1923.
8 Ibid., December 5, 1923,
9 New York Times, May 15, 1925.
, August 5 and 9, 1925.

The Pattern of Enforcement 135

wide variety of places, of which restaurants, hotels,
amusement parks, roadhouses, cabarets, pool rooms,
and delicatessen stores were the commonest examples.

In the years from 1921 to 1925 the activities of the
federal government in this type of work increased at a
steadily accelerating pace. In 1921 agents of the Prohi
bition Bureau seized 413,987 gallons of hard liquor
in the course of their raids in different sections of the
country; in 1925 they seized 1,102,787 gallons. 11 In 1921
they seized 4,963,005 gallons of beer and other malt
liquors; in 1925, 7,040,537 gallons. Between 1921 and
1925 the amount of wine, cider, mash, and pomace con
fiscated by the federal government rose from 428,303
gallons to 10,572,933 gallons, an increase in six years'
time of 2368 per cent. 12

If it is difficult to appreciate the meaning of these
enormous figures by considering them as abstract num
bers, it is at least possible to suggest the character of
the problem which they represented, and the tireless
ingenuity which was forced upon the government in
dealing with this problem, by considering the individual
activities of two federal agents who have left an indeli
ble impression behind them in the history of prohibition
in New York. These two agents are Izzy Einstein and
Moe Smith. Fantastic as their story seemed to be in
1925, judged in the light of the activities which the
public had hitherto associated with the responsibilities
of the federal government, the sheer extravagance of

u Figures cited in this paragraph are quoted from Statistics
Concerning Intoxicating Liquors, United States Treasury
Department, 1930, p. 64.

^Figures of the seizures made by agents of the federal govern
ment in each year from 1920 to 1929 will be found in Appen
dix G.

136 The Dry Decade

the exploits upon which these agents of the law em
barked was in itself a revealing measure of the task
confronting the federal government when it found itself
unable to control the sources of production of illegal
liquor and compelled to pursue the supply in driblets, in
the role of a detective.

Izzy and Moe disguised themselves as automobile
cleaners, raided a garage on West Broadway, and seized
nine barrels of beer and 244 cases of whisky. 13 They dis
guised themselves as milk drivers, carrying customers'
account books, visited nine saloons on the East Side of
New York, seized a quantity of liquor, and made
seventeen arrests. 14 They disguised themselves as
grave diggers, raided a speakeasy across from Wood-
lawn Cemetery, and confiscated fifty barrels of alcohol. 15

For purposes of other raids, and in each case with
comparable success, they took to the streets disguised
as vegetable venders, as fishermen, as horse dealers,
as street-car conductors, as churchgoers in the Palm
Sunday parade along Fifth Avenue, and as salesmen of
a wholesale grocery concern, offering turkeys to the
Thanksgiving trade. 16 On his own score, and without
benefit of assistance from his usual companion, Izzy ap
peared in the role of a thirsty motorman, a football
player in Van Cortlandt Park, a patron of a suspicious
pawnshop, an iceman catering to saloons in Brooklyn,
a trombone player offering to treat new friends at the

13 New York World, January 5, 1923.

u lbid. 9 November 2, 1921.

l *Ibid., March 4, 1922.

16 New York Times, November 22, 1922; Ibid., July 17,
1923; New York Herald, January 26, 1922; New York World,
June 9, 1921 ; Ibid., April 10, 1922; New York Times, Novem
ber 27, 1922.

The Pattern of Enforcement 137

Yorkville Casino and an actor who joined the Fern
Club under the pseudonym of Ethelbert Santerre. 17

Certainly in the pursuit of illicit liquor through
the labyrinth of New York City no more substantial
contribution was made to enforcement of the law than
by these two resourceful agents. Their superior officers
in the Prohibition Bureau credited them with respon
sibility for twenty per cent of the cases brought to trial. 18
The Supreme Court of the United States honored them
on one occasion by upholding their interpretation of the
law. 19 When the time came finally for the government
to dispense with their services, presumably on the
theory that a too generous publicity had robbed them of
their usefulness, Mr. Wayne B. Wheeler and other
friends of prohibition interceded unsuccessfully in
their behalf. 20

Damon and Pythias in the armor of enforcement,
through four years of raids and round-ups the enter
prising figures of Izzy and Moe appeared in silhouette
against the cynicism of the city as symbols of the law.

There was one unmistakable characteristic of
hibition raids, whether undertaken by federal agents
or by local police officials: the energy and the frequency
of such raids varied with the degree of criticism to
which the federal or local government found itself ex-

17 New York Tribune, July 12, 1921 ; New York Herald, October
31, 1921; New York Times, April 12, 1923; New York Trib
une, June 21, 1921; New York Times, March 26, 1922; Ibid.,
July 23, 1925.

18 New York Times, May 18, 1922.

19 Associated Press dispatch, Washington, April 13, 1925.

20 New York Times, November 20, 1925.

138 The Dry Decade

posed. When public interest in the law was at low ebb
and the public's mind was more engaged with Wall
Street or with summer sports than with the question of
enforcement, raids as a rule were at their minimum.
When something suddenly occurred to stimulate in
terest in the law and to focus public attention sharply,
if momentarily, on the question of enforcement, raids
frequently picked up with astonishing celerity.

A case in point may be cited from the experience of
Chicago. In November, 1921, the administration of the
law in that city was proceeding in a quiet manner when
the Chicago Tribune published the results of a survey of
local conditions of enforcement. At least 4,000 saloons,
the Tribune found, were operating in Chicago. "Prac
tically 100 per cent of them are selling some kind of
beer, some sort of whisky, and some unbranded wine/'
It was no trouble for a stranger to obtain liquor if he
wished it. Drinks could be purchased openly. No guile
and no acquaintanceship with the city's ways were
needed. "The saloons are far less cautious than they
were a year or eighteen months ago/' 21

The sequence of events following publication of the
Tribune's survey was a rallying of public interest in the
question of enforcement, a considerable amount of
popular discussion, and a sudden burst of activity in
the Police Department. According to the Associated
Press: "Real prohibition has arrived for Chicago's
2,800,000 inhabitants, Chief of Police Fitzmorris an
nounced to-night in an edict ordering the city's 5,300
policemen to rivet the lid down "until it squeaks/ . . .
The chief announced that all the teeth of the state
dry act, counted even more drastic than the federal
prohibition law, would be utilized 'to make Chicago so
21 Chicago Tribune, November 10, 1921.

The Pattern of Enforcement 139

dry that a sponge can be wiped across it without pick
ing up a drop of liquor/" 22

For a few days the wires hummed with news of this
offensive. Five hundred arrests were made in Chicago in
the course of one day's round-ups. 23 A "dress-suit
squad' 5 was formed in the Police Department to appre
hend "exclusive society violators of the law" in well-
known hotels and restaurants. 24 So many arrests were
made in a few days' time that the city chemists could
not keep pace with the police in their analyses of liquor
seized. 25 At the end of a week of strenuous activity,
however, the offensive began gently to taper off. At the
end of a second week it seemed to have come to rest. At
the end of a month it was a golden memory.

When it appeared again, it was under different
auspices and after the passage of two years. A reform
mayor, William E. Dever, had been elected in the
meantime. In 1923 the press reported him as believing
that the city was wide open and as insisting that the
police enforce the law. 26

Once more a series of determined raids began. One
hundred suspected violators of the law were arrested
on the first day, three hundred on the second, three
hundred on the third. 27 "The mayor made it clear to
day," said the dispatches from Chicago, "that he did
not intend to stop until he had closed every one of the
six thousand ' soft-drink parlors' in the city, which are
saloons operating under a false front. He declared that

22 Associated Press dispatch, Chicago, December 15, 1921.
23 New York Times, December 19, 1921.
^Associated Press dispatch, Chicago, December 21, 1921.
^Ibid.y December 20, 1921.
26 New York Times, October 4, 1923.
., October 5, 6, 7, 1923.

140 The Dry Decade

he will make Chicago a dry city inside of thirty days if
he has to dismiss every captain and lieutenart in the
Police Department/' 28

There can be no question of the integrity of the
mayor's intention and no question that he failed. What
ever the fate of the soft-drink parlors, the sources of
production flourished. "No man knows whether there
are five thousand or eight thousand or ten thousand
or twenty thousand stills in Chicago," Mayor Dever
testified when he appeared as a witness before a com
mittee of Congress, two years after this revival of en
forcement in Chicago. "But that the stills are there,
and that they are there in threatening numbers, I have
not the slightest doubt." 29

On a somewhat more elaborate scale this sequence
of events was repeated in Philadelphia. The experience
of the latter city off ers, in fact, an unusually clear illus
tration of the methods used and the results achieved by
police departments acting under pressure.

As in the case of Chicago, the impetus for a sudden
outburst of activity in Philadelphia was provided by a
sharp criticism of existing conditions, issuing from a
source sufficiently authoritative to challenge public
interest. In an address delivered before the state con
vention of the Woman's Christian Temperance Union
toward the end of 1923, Governor Gifford Pinchot
charged that the Philadelphia police were making
"practically no effort" to obtain enforcement and that

28 New York Times, October 6, 1923.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 1390.

The Pattern of Enforcement 141

saloons were operating in open defiance of the law. "In
one saloon/' he said, describing the results of a personal
tour of observation, "the law-breaking drinkers sur
rounded the illegal bar four deep. It was easy to find,
for there was as little secrecy about it as there is about
the Washington Monument. Crowds walked in and out.
A policeman stood at the very door/' 30

This criticism of conditions of enforcement, made by
the Governor of the state, coincided with the election
of a new mayor in Philadelphia, Mr. W, Freeland Kend-
rick, who volunteered to give the law a different type of
administration under a more aggressive Director of
Public Safety.

With this end in view Mr. Kendrick appealed to the
President in December, 1923, for a loan of the services
of Brigadier-General Smedley D. Butler of the United
States Marine Corps. General Butler had no previ
ous experience as a prohibition officer, but he was a
strong disciplinarian whose complete independence of
local politics was a demonstrated fact. To his new
public in Philadelphia he announced that he had not
sought this position and did not particularly want it,
but that having accepted it he was "going to do it right
or not at all." 31 He had heard it said that prohibition
could not be enforced. "That is silly. Any law can be
enforced precisely as it is written if the men responsible
want it done/' 32 He promised Philadelphia that he would
give the city law enforcement "impartially and without
fear/ 5 regardless of political pressure, even if he were
"torn apart in the attempt." 33

30 Associated Press dispatch, Erie, Pa., October 6, 1923.
31 New York Times, December 23, 1923.

^Associated Press dispatch, Philadelphia, December 16, 1923.

i 4 2 The Dry Decade

With this much by way of prelude, General Butler
took command of the Police Department on January 7,
1924, and immediately the guns began to roar.^Nine
hundred and seventy-three saloons were closed in his
first five days in office, the new Director of Public
Safety announced on January iith. 34 Two thousand ar
rests were made in round-ups during his second week
in office. 35 Four hundred policemen were shifted over
night in an attempt to improve the morale of the police
force. 36 Eight police lieutenants were suspended for
failure to rid their districts of saloons on forty-eight
hours* notice. 37

Meantime, the city's sixteen hundred firemen were
invited by General Butler to "pitch in and help enforce
the law/' 38 Fruit stores, pool rooms, restaurants and
garages were searched industriously for liquor. 39 So-
called "best society" was warned that the time had
come when it would not be permitted to trifle with the
law. "The day has passed in Philadelphia," announced
the Director of Public Safety, "when societies and or
ganizations can hold banquets in big hotels and serve
liquor. We don't care who is holding them. We will
arrest all the 'four hundred' if we catch that many in
possession of illegal liquor." 40

Here, certainly, was an enforcement officer made to
order for those eager friends of prohibition who believed
that what the situation needed was energy and a little

^New York Times, January 12, 1924.

**Ibid., January 20, 1924.

^Associated Press dispatch, Philadelphia, January 25, 1924.

37 New York Times, January n, 1924.

., January 17, 1924.

., January 19, 1924.

.y January n, 1924.

The Pattern of Enforcement 143

backbone. "What General Butler has done in Philadel
phia in a few short weeks can be done throughout the
entire country if the people will rise up and support the
law/' declared Mr, Josephus Daniels in an interview in
Philadelphia. "As soon as Butler is finished here he
should be called to Washington and made national
prohibition enforcer/' 41 Similar statements appeared in
other quarters. From a state conference of the Metho
dist Church in New Jersey came a message of congratu
lations, expressing hope that action comparable with
General Butler's would promptly "be taken in every
town and every city in New Jersey." 42

For the moment, enthusiasm unquestionably ran
high. Under pressure of events, however, General
Butler's experiment gradually assumed a somewhat
different form. The public began to hear less of raids, of
round-ups, and of ultimatums, and more of factional
disputes, of disagreements behind the scenes and of
quarrels with the politicians.

Thus in April, 1924, General Butler informed the
press that he had been "double-crossed" by some of the
men closest to him in the Police Department. 43 In July
there were reports of a disagreement with the mayor
which threatened to lead to a crisis but ultimately ended
in a reconciliation. 44 In April, 1925, after his leave of
absence from the Marine Corps had been extended for a
second year, there came more serious reports that
General Butler himself was tiring of his responsibilities.
Enforcing the law in Philadelphia, he now informed

41 New York Times, February 9, 1924.
^Associated Press dispatch, Atlantic City, March 8, 1924,
^Ibid., Philadelphia, April 8, 1924.

44 New York Times, July 21, 1924; Associated Press dispatch,
Philadelphia, October 2, 1924.

144 The Dry Decade

the Associated Press, "is worse than any battle I was
ever in. ... The petty annoyances that are piled on me
are worse than the Chinese drip torture." 45

This theory of his responsibilities he expanded in
September. "The path of law enforcement/' he in
sisted, "has been blocked by powerful influences, by
legal machinery that should have been an aid, and by
the invocation of technicalities." So formidable were
these obstacles that in General Butler's opinion, "en
forcement of prohibition in this city is virtually
stopped." This was a disillusioning conclusion for an
enforcement officer who had begun his work in all good
faith, but the trouble lay deep down. "Law enforcement
on an absolutely even basis has not had the support of
the people of Philadelphia and does not have it now/' 46

Three months later, confessing that he was not
reluctant to be leaving Philadelphia "the job isn't
worth staying for a waste of time" 47 General Butler
took leave of the post which he had filled for two event
ful years. The conditions which he had come to correct
admittedly lived after him. So did the method of en
forcement to which he had given fresh vigor and
publicity.

Long after General Butler had returned to the ma
rines and a quieter life in another section of the country,
Police Unit No. i, which he had created for special en
forcement work in his first days in Philadelphia, still
plugged ahead at the task to which he had assigned it.
On Christmas night in 1926 it completed its ten-
thousandth raid. 48

^Associated Press dispatch, Philadelphia, April 21, 1925.
46 New York Times, September 13, 1925.
47 Associated Press dispatch, Philadelphia, November 21, 1925.
48 New York Times, December 26, 1926.

The Pattern of Enforcement 145

In the statement in which he announced his departure
from Philadelphia, General Butler reported that one of
the greatest handicaps with which he had had to con
tend was the difficulty of enforcing prohibition in the
courts. Of more than six thousand people arrested for
alleged violations of the law during his second year in
office, he pointed out that only 212 had been convicted.
This was a discouragingly small percentage. "The
result clearly shows/' it seemed to General Butler,
"that enforcement hasn't amounted to a row of pins
after the arrests were made/' 49

In calling attention to this chapter of his experience
in Philadelphia, General Butler was in reality calling
attention to one of the major characteristics of the
pattern of enforcement not only in Philadelphia but in
the country as a whole. The second half of the effort to
enforce prohibition with an insufficient staff of agents
was the problem of imposing adequate penalties for
violations with an insufficient staff of judges and
attorneys in the courts.

This problem had appeared in miniature form at an
extremely early date in the history of prohibition. As
an earlier chapter has pointed out, the United States
District Attorney for Chicago had reported in June,
1920, that the federal courts in that city were already
five hundred cases behind schedule and Attorney
General Palmer had appeared before the Appropria
tions Committee of the House of Representatives in
the following December to insist that the federal

49 New York Times, September 13, 1925.

146 The Dry Decade

judiciary could not handle the flood of prohibition cases
without more help from Congress. 50

This warning was repeated by Mr. Palmer's suc
cessor in the Department of Justice. In his first report
as Attorney General Mr. Harry Daugherty pointed out
that the number of unfinished prohibition cases pending
in the courts had increased from 2,196 to 10,365 in a
single year and urged the creation of eighteen new
federal judges at large, to be assigned as needed. 61

So much of a problem had violation of this law be
come, from the point of view of the courts, that as early
as the second year of prohibition Mr. Daugherty was
already experimenting with the same plan for trials
without jury, before United States Commissioners,
which was to provoke a sensation in the headlines when
it was recommended to the country nine years later
by the Wickersham commission. In April, 1921, the
Associated Press reported his belief that such a plan,
relieving the federal courts of a responsibility which
promised to engulf them, would aid materially in the
enforcement of the law, particularly in the larger cities. 52
From 1921 to 1925 this problem of relief for a hard-
pressed judiciary steadily increased in importance
rather than diminished. In 1922 the number of arrests
by federal officers rose from 34,175 to 42,223, the
number of prosecutions begun in the federal courts from
29,114 to 34,984, and the number of cases unfinished
at the end of the year from 10,365 to 16,713. 63

BO Chapter III, supra.

^Report of the Attorney General of the United States, fiscal year
ended June 30, 1921, pp. 101, 4.

62 Associated Press dispatch, Washington, April 21, 1921.

^The figures cited here and in the three following paragraphs
are quoted from Statistics Concerning Intoxicating Liquors,
United States Treasury Department, 1930, pp. 64, 70.

The Pattern of Enforcement 147

In 1923 federal arrests again increased, in this case
from 42,223 to 66,936; prosecutions increased from
34,984 to 49,021; cases pending at the end of the year
increased from 16,713 to 23,060. Commenting on the
situation in which the federal courts now found them
selves, the Department of Justice took occasion to ob
serve: "The reports would seem to indicate that the
crowded condition of the federal dockets is due for the
most part to the fact that the prohibition burden is not
being shared by the state courts, except in one or two
states, notably Kansas and Wisconsin. It seems possible
that other states could reduce the number of pending
cases if they so desired/' 54

In 1924 arrests once more increased, this time
from 66,936 to 68, 1 1 6; there was a slight decrease
in the number of prosecutions and the number of
unfinished cases, which dropped from 49,021 to 45,878
and from 23,060 to 22,329, respectively. The situation
remained difficult enough, however, for the De
partment of Justice to assert in its annual report that
"the United States courts to-day are staggering un
der the load imposed on them by prohibition legisla
tion." 55

Finally, in 1925, while the figures of the Prohibition
Bureau for arrests by federal officers showed their first
slight falling-off since the start of this experiment,
diminishing from 68,116 to 62,747, the figures of the
Department of Justice for prosecutions in the courts
reached the highest point on record, mounting from
45,878 to 50,743. Unfinished cases on the dockets at the
end of the year also set a new high record, annulling

64 New York Times > January 10, 1923.

^Report of the Attorney General of the United States, fiscal year
ended June 30, 1924, p. 79.

148 The Dry Decade

the decrease of the previous year and advancing from
22,329 to 24,684. 56

At this point, in the first six months of 1925, the
Department of Justice now initiated more than three
times as many cases as it had handled in the first six
months of 1920. The docket of its unfinished cases had
increased by 1024 per cent in five years' time.

It was in an effort to find some instrument of enforce
ment which would not give the federal courts more
business than they could profitably handle, and an
effort to supplement its policy of raids and drives with
something which would not melt away in the fashion
of General Butler's arrests in Philadelphia, that the
Prohibition Bureau evolved its policy of padlocks.
There had been a certain amount of experiment with
this method in 1921. But it was "in the fall of 1922,"
as Major Haynes described the development of the
policy, "that someone hit upon this tool. It was labeled
* injunction/ It could be used, it was argued, under
Sections 21, 22, 23, and 24 of the National Prohibition
Act. And so it proved." 67

The sections of the Prohibition Act to which this
statement of Major Haynes referred were those sections
broadly defining "any room, house, building . . . where
intoxicating liquor is manufactured, sold or kept" as
"a common nuisance" and giving the federal govern
ment power to apply for an injunction against such a
nuisance, with the provision that "upon judgment of

^Figures of the prosecutions begun in the federal courts, con
victions, acquittals, pleas of guilty, cases pending, fines, etc.,
for each year from 1920 to 1929 will be found in Appendix H.

57 New York Times, August 8, 1923.

The Pattern of Enforcement 149

the court ordering such nuisance to be abated, the court
may order that the room, house, building ... or place
shall not be occupied or used for one year thereafter."

The convenience of these provisions, for the purposes
of the Prohibition Bureau, lay in the character of the
penalty prescribed. A series of raids on a speakeasy
known to be selling liquor usually had no other effect
than to interrupt its profits momentarily. Once a place
was padlocked, however, at least in theory it remained
padlocked for a year. Moreover, this method of pro
cedure had the advantage of a liberal interpretation in
the courts. Although some conflict of opinion appeared
upon the point, a single sale accompanied by unlawful
possession of other liquor on the premises was held in
test cases to be sufficient to warrant the issue of a pad-
loclyriiunction. 58 "*""

"~do promising did this method of procedure seem to
be, following its rediscovery in 1922, that the govern
ment took advantage of it on an increasingly large
scale. In 1922, 1,270 injunctions were issued by the
courts, as compared with 466 during the previous year.
In 1923 the number of injunctions increased to 1,928;
in 1924, to 3,342 and in 1925 to 4,47i. 59

Over a wide front the government sought diligently
to invoke this method of procedure as a supplement to
the arrests which it was making in these years. San
Francisco was one of the first cities to witness the pad-
lo^EiHg^oT a number of its saloons. The method was
used extensively in Omaha and Detroit. In New York

58 United States v. Eilert Brewing & Beverage Co., 278 F. 659
(1921); Lewisohn v. United States, 278 F. 421 (1922),
certiorari denied 258 U. S. 630 (1922).

^Padlock Procedure, United States Treasury Department,
P- 5-

150 The Dry Decade

City five hundred speakeasies were padlocked by an
industrious federal attorney within thirteen months. 60
In its interest in this legislation the government brought
the owners of a wide variety of buildings into court.
In Chicago an entire hotel of 125 rooms was closed as a
result of frequent violations of the law. 61 In the same
city padlocks were placed on the doors of two private
residences, following the conviction of occupants of
these buildings on a charge of manufacturing and
distributing liquor. 62

- So zealously was the injunction method used that in
northern California the government actually succeeded
in padlocking a tree. The tree was a redwood, twenty-
four feet in diameter, six miles from the town of Dyer-
yille. A hollow chamber in its base concealed a fifty-
gallon still, operating at full capacity when it was
raided. Kerosene was used as fuel, and the light smoke
disappeared through a flue amid the foliage. Entrance
to the chamber was concealed by a strip of canvas
painted to resemble bark. 63

Over this strip of canvas the government now hung a
placard reading: "Closed for One Year for Violation of
the National Prohibition Act/'

As might have been anticipated, the government's
resort to padlocking procedure on an increasing scale
from 1922 to 1925 was not accomplished without protest

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 102.

^Padlock Procedure y United States Treasury Department,

*93, P- 43-

^New York Times, January 25, 1925.
^Associated Press dispatch, San Francisco, April 8, 1926.

The Pattern of Enforcement 151

on the part of a number of people, in no way involved in
violations of the law, who believed this procedure to be
arbitrary and unfair. Critics of the padlock method
insisted that it was applied without benefit of a proper
trial by jury. They insisted that it frequently penalized
an innocent party who might not know that some por
tion of a building which he had rented to a tenant had
been used for an illegal purpose. They insisted that it
inflicted punishment which varied capriciously not
with the character of the offense against the law
but with wide variations in the value of the properties
involved.

Whatever the force of these objections it is clear that
the padlock method required less litigation than any
other method suggested by the Volstead Act and that
it was a far more effective principle of action to close the
doors of a building for a year than to raid it every Mon
day. It is equally clear that despite these obvious ad
vantages the padlock method failed to provide the
Prohibition Bureau with a satisfactory solution of its
problems. There were inherent difficulties in the padlock
method, as might have been inferred from the relatively
small number of padlock proceedings in the whole run
of prohibition cases brought to court.

(i) Plainly the effectiveness of the padlock was
measured by the circumstances of the individual case.
It might make a three days' sensation in the headlines
to padlock for one year a supper club patronized by a
coterie of leading citizens. It was of little use to padlock
a deserted warehouse where two soogallon stills manu
factured enough liquor in a month to last a dozen night
clubs for a year. The owners of such a plant simply re
invested part of their profits in new equipment and
sought another site.

152 The Dry Decade

(2) There were certain technical difficulties of a
formidable nature which had to be faced in padlock
procedure. Summarizing its experience at a somewhat
later date, the Prohibition Bureau pointed out that
fictitious leases, oral assignments of leases, and dummy
corporations were frequently used to conceal the real
identity of guilty parties, and asserted, "Records show
that service [in padlock cases] can not be secured in
more than 50 per cent of the cases brought and that not
more than 35 per cent of the cases are finally closed by
order of the court/' 64

(3) Finally, there was the manifest difficulty of keep
ing a padlock locked, once the key was turned. Testify
ing before a committee of Congress in April, 1926, the
United States Attorney for the Southern District of
New York declared that one of the constantly recurring
problems in this method of enforcement was the
problem of preventing padlocked places from reopening
for business at some convenient date after the courts
had closed their doors. "We have nobody to see to
that. . . . We have no way of knowing except as we rely
upon the neighbors for information/' For Congress,
in its reluctance to tax the country heavily in the
interest of enforcement, had given the executive
department only twenty-three agents to handle padlock
procedure in a district with a population of eight million
people. 65

Once more the problem of enforcement returned to
the question of half-hearted interest and inadequate
appropriations.

^Padlock Procedure, United States Treasury Department,
1930, pp. lo-n.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 69th Congress, 1st Session, pp. 188-189,

The Pattern of Enforcement 153

By 1925 the pattern of enforcement was clearly de
fined and reasonably well standardized.

In the first place, lacking adequate personnel to
handle its various problems simultaneously, the Pro
hibition Bureau had fallen back upon a policy of
mobilizing part of its personnel for special drives. These
drives were supplemented by padlock action wherever
possible and by local raids on the part of both federal
officers and local officers.

Raids varied in number and intensity in direct pro
portion to the amount of criticism current at the mo
ment: increasing with signs of active dissatisfaction and
subsiding with a falling-off of public interest. The result
which they achieved was the arrest by federal officers of
313,940 suspected violators of the law during the first
six years of prohibition 66 and the arrest by state and
municipal officers of an unknown number of suspected
violators, presumably much larger. It was not contended
that the government had succeeded in arresting every
person guilty of breaking the law, but merely that it
had succeeded in arresting as many guilty persons as it
could. "We do not begin to arrest all that are guilty/ 5
General Andrews told a Senate subcommittee in 1926.
"We cannot." 67

In the second place, while the number of arrests was
too small to encompass the guilty, it was too large to be
handled successfully in the courts. By the end of 1925

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 64.
^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, ist Session, p. 57.

154 The Dry Decade

enough arrests were being made in New York City
every month to occupy for an entire year the attention
of such federal judges as were available for prohibition
cases, assuming that the prosecution asked in each case
for a jail sentence, which meant a jury trial. 68 At the
end of a year's effort, therefore, with the judicial ma
chinery furnished by Congress, and on the basis of a jury
trial and a jail sentence for each violator, the federal
courts would have found themselves with eleven years'
work to handle. By the end of two years' effort they
would have been twenty-two years behind schedule.
In ten years they would have lost a century.

Admittedly the law was unpopular in New York.
But congestion in the courts was not unique to this one
district nor the exclusive result of its lack at this time of
a state enforcement act. In this same year the Depart
ment of Justice reported that "United States attorneys
throughout the country are handicapped by insufficient
legal and clerical assistance and in many districts are
prevented from promptly disposing of criminal prosecu
tions by the inability of the courts to give sufficient
time to the holding of criminal sessions. . . Additional
judges and increased office help for United States at
torneys are absolutely necessary." 69

In the third place, it was clear that the law was fur
ther handicapped, particularly in the matter of jail
sentences, by the unwillingness of judges and juries in
many instances to impose harsh penalties. "In many
districts the variance between sentences imposed for
violations of the National Prohibition Act and those

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, pp. 104, 105.

**Rtport of the Attorney General of the United States, fiscal year
ended June 30, 1925, p. 39.

The Pattern of Enforcement 155

imposed for convictions of other federal crimes is
striking," said the Department of Justice in its annual
report for 1923. "Some courts which exact the maximum
penalties in other federal crimes are reluctant to place
heavy punishment on prohibition violators/' 70

In support of this conclusion Mr. J. J. Britt, of the
legal staff of the Prohibition Bureau, informed a com
mittee of Congress in 1925 that in such states as New
York and Pennsylvania "it is very difficult to get a
verdict of any great consequence in either civil or
criminal cases relating to prohibition matters." 71 Mayor
Dever of Chicago described the state judges in Cook
County as deliberately indulgent. "These state judges
have to go before the Chicago communities for nomina
tion, for election. They have got to get the votes of the
Chicago community. The Chicago city administration
is enforcing an unpopular law. The judges, being human,
see what is going on. They know they are coming up for
reelection. They know that if they are with the un
popular law they are going to be beaten for office." 72

Faced with this double handicap of more cases in the
courts than the courts could handle, and hostility to
the law, or indifference to the law, precisely at those
points where the courts were most congested, the
government fell back upon the only expedient available
to it in the circumstances and established its famous
"bargain days."

Here justice was dispensed with a broad hand and no
necessity for juries. On set days in the court calendars,

^Report of the Attorney General of the United States, fiscal year

ended June 30, 1923, p. 86.
71 New York Times, January 17, 1925.

^Hearings of a Subcommittee of line Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 1396.

156 The Dry Decade

large numbers of bootleggers, restaurant proprietors,
hotel keepers, waiters, smugglers, distillers, and go-
betweens would plead guilty to violation of the law,
provided they were assured in advance that they would
avoid jail sentences and escape with fines. This was the
regular method of handling prohibition in the courts by
1925. Pleas of guilty, without jury trials, accounted for
90.99 per cent of the convictions obtained in the federal
courts. 73 Enforcement of the law, as General Butler had
complained, might not "amount to a row of pins after
the arrests were made/' There remained no other
method by which the government could prevent its
courts from being inundated.

It is a somewhat ironic fact that a committee of the
same Congress responsible for failure to create sufficient
judicial machinery to handle prohibition cases should
have thrown up its hands in horror at the conditions it
discovered in the courts. 74 The heaviest penalty for
violations of the prohibition law which this committee
reported in 1925 was an average jail sentence of 185
days and an average fine of $525 in Indiana. In the
eastern district of Louisiana the average jail sentence
was five days and the average fine $86. In Massachu
setts the average jail sentence was three days and the
average fine $127. In the western district of Kentucky
the average jail sentence was three-tenths of a day and
the average fine $148. " In New York City, in the federal
court from June 23 to June 27, inclusive, Judge Clayton
of Alabama sitting, the average fine imposed was $24 in
256 cases. Nine prisoners were fined 5, 132 were fined

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 70.
^Report of a Subcommittee of the House Committee on Alcoholic

Liquor Traffic, 68th Congress, 2d Session.

The Pattern of Enforcement 157

$10, five received $15 fines, seventeen were fined $20,
and thirty were assessed $25. Only 63 of the 256 were
fined more than $25. The maximum fine imposed was
$200, levied upon two prisoners." 75

The fact of the matter is that by 1925 the government
had established a new license system, differing from the
old license system only in the fact that it was low-
license rather than high-license.

The increasingly critical statements issued by vari
ous prohibition organizations in 1925 showed their
dissatisfaction with the character of any effort as yet
expended in the interest of enforcement. It is small
wonder that they were disappointed.

^Report of a Subcommittee of the House Committee on Alcoholic
Liquor Traffic, 68th Congress, 2d Session, p. 6.

CHAPTER VII
The Battle of Propaganda

O,

"F THE thousands of conflicting estimates of national
prohibition placed before the country at the end of
1925, these two are typical:

From Congressman Schneider of Wisconsin: "Vice,
crime, immorality, disease, insanity, corruption, and a
general disregard for law, directly traceable to the
unenforceability of the Volstead Act, are increasing with
alarming rapidity." 1

From the Anti-Saloon League of America: "Industry,
commerce, art, literature, music, learning, entertain
ment, and benevolence all find their finest expression
in this saloonless land/' 2

To the militant leaders of the wets, the law had not
only broken down, but in its breakdown saddled the
American people with a heavy burden. To the militant
leaders of the drys, neither the handicap of hostility
which the law had encountered in the cities nor the lax
conditions of enforcement of which the drys themselves
complained could rob this experiment of its usefulness.
The net result was clear gain, of lasting value to the
country.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary , 6Qth Congress, 1st Session, p. 629.
2 New York Times, November 26, 1925.

158

The Battle of Propaganda 159

On these two major themes there were many varia

tions.

The field of controversy over the results achieved by
six years of prohibition in the United States has been
plowed over many times and turned up few facts whose
authenticity has not been challenged. One of these facts
is unmistakable. Whatever had happened to vice, crime,
and immorality or to art, literature, and music, for
that matter Congressman Schneider and those who
shared his opinion of this experiment were entitled to
cite an increase in corruption in public office as one of
its by-products.

There is no evidence that corruption had reached any
of the chief officials of the Prohibition Bureau or that it
had seeped through to other bureaus of the Treasury
Department. There is certainly no evidence to support
the sweeping statement that as a result of six years of
prohibition the integrity of the whole government was
tottering. With this much said, however, any summary
of events from 1920 to the end of 1925 is bound to re
cord the fact that prohibition had introduced into the
lower ranks of the federal service, and both the lower
and upper ranks of many local governments, a type of
corruption which was widespread, stubborn and de
structive.

Evidence of this corruption appeared on many sides
and in many sections of the country.

In March, 1923, indictments charging illegal sale and
transportation of intoxicating liquor were brought
against seventy-five citizens of the city of Gary, In
diana, including the mayor, a judge of the City Court,
a former prosecuting attorney and various police

160 The Dry Decade

officers, deputy sheriffs, bootleggers, and proprietors of
speakeasies. Fifty-five of the seventy-five defendants
were found guilty. The mayor was fined $2,000 and
sentenced to eighteen months in prison. The other fifty-
four received jail sentences ranging from one day to
one year and fines of from $100 to $5OO. 3

In May, 1921, charges of extortion and conspiracy
to violate the Volstead Act were brought against
twenty-three justices, ex-justices, aldermen, and sher
iffs in Fayette County, Pennsylvania. 4

In April, 1925, fifty-eight policemen and prohibition
agents, found guilty of conspiracy to violate the law,
were sentenced to prison terms in the United States
District Court at Cincinnati. 5

In October, 1921, warrants were issued at Phila
delphia for the arrest of agents of the federal govern
ment involved in a conspiracy by which liquor valued
at $15,000,000 was withdrawn from distilleries in
Pennsylvania, New York, New Jersey, Maryland,
Illinois, Indiana, and Kentucky by means of fraudulent
permits. 6

In August, 1925, a Controller of Customs at New
Orleans, a police captain, a sheriff, the brother of
a state Senator, and twenty-seven others were indicted
for participation in what was described by Treasury
officials as "one of the largest liquor conspiracies as yet
uncovered in this country/' 7

In September, 1924, warrants were issued for the
arrest of two state officials and sixty-seven citizens of

3 Associated Press dispatch, Gary, Ind., April 28, 1923.
*IKd., Uniontown, Pa., May 19, 1921.
*Ibid., Cincinnati, April 22, 1925.
*lUd., Philadelphia, October 20, 1921.
*New York Times, September 13, 1925.

The Battle of Propaganda 161

Little Rock, charging conspiracy against the prohibi
tion law. 8

In December, 1921, one hundred agents of the federal
government in New York City were dismissed as the
result of an investigation into the abuse of permits for
the use of intoxicating liquor. 9

It is fair to say that such cases as these, involving
charges of corruption on the part of as many as twenty,
thirty, fifty, or even a hundred officials at a single time,
were exceptional cases in the experience of the law.
The usual thing was the dismissal of one agent here,
two agents there, the indictment of a half dozen police
men in Chicago, or the conviction on charges of con
spiracy of a Federal Prohibition Commissioner for
Ohio. 10

In this form, cases of corruption appeared and re
appeared in the news of prohibition with marked
regularity. So conventional had a certain amount of
bribery become, by the end of a few years, that the
prohibition agent dismissed for issuing a false permit
and the police officer indicted on a charge of extorting
funds from the owner of a speakeasy anxious to protect
his trade were as familiar figures in the pattern of en
forcement as a new drive on the border, a sudden
flurry of raids designed to quiet criticism in the press,
the appearance and the disappearance of a General
Butler, the locking of a padlock on a new saloon, or the
announcement of a new plan to relieve congestion in
the courts. It was presumably to this fact that the
President of the United States referred when he said of
prohibition in 1922 that "there are conditions relating

8 New York Times, September 15, 1924.

*Ibid., December n, 1921.

10 Associated Press dispatch, Cleveland, June 10, 1925.

162 The Dry Decade

to its enforcement which savor of nation-wide scandal.
It is the most demoralizing factor in our public life." 11

How many state and municipal officials were actually
found guilty of corruption in these early years of pro
hibition it is impossible to say. States and municipalities
do not make it their practice to keep such records. Noth
ing better exists by way of an official estimate than the
opinion of Commissioner Haynes that bribes had been
offered freely to "sheriffs, constables and peace officers
by all titles" and that "those who have been caught are,
doubtless, but a fraction of those who are guilty." 12

From the federal government itself, however, ac
curate figures are available. By February i, 1926, at the
end of six years of prohibition, 875 agents of the enforce
ment service had been dismissed on the score of such
offenses as bribery, extortion, solicitation of money,
conspiracy to violate the law, embezzlement, and sub
mission of false reports. 13

That this list of dismissals measured the full extent of
corruption in the Prohibition Bureau seems unlikely.
Presumably there were agents shrewd enough to conceal
evidence of misconduct until they had left the service of
the government. Presumably there were other agents,
less fortunate in this respect, who were saved from dis
missal by the interference of a politician capable of
exercising pressure. Assuming, however, that the list of
875 dismissals was an accurate index of corruption,
and accepting General Andrews's estimate that in six
years' time some 10,000 men had passed in and out of
the Prohibition Bureau for the purpose of filling an

"Message to Congress, December 8, 1922.
^New York Times, August 5, 1923.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 92.

The Battle of Propaganda 163

average of 3,060 jobs, the number of agents dismissed
for corruption was approximately one out of twelve.
This was not an entirely unprecedented figure. As
Senator Harreld of Oklahoma pointed out, "One out of
twelve of the disciples went wrong/' 14 and this was cer
tainly no worse. Yet within the experience of the federal
government it was novel. No other bureau in Washing
ton shared the experience of the Prohibition Bureau in
these years. No other bureau found it necessary to dis
charge one twelfth of its employees for a breach of trust.
Whatever precedent for these figures existed elsewhere,
it seems clear that a great deal of confusion would have
arisen in the United States, if at every point in its wide
contact with the public the federal government had
been 8 per cent dishonest.

There was one unexpected way in which corruption in
the enforcement of the Eighteenth Amendment, how
ever much to be deplored, brought a certain sense of re
assurance to the friends of prohibition. It is needless to
say that they regretted the existence of corruption,
sought in various ways to help bring it to an end, and
believed that the law could be enforced much more
effectively without it. The fact remains that since the
law was not effectively enforced, corruption in the
federal service offered a reassuring explanation of its
failure to achieve a more complete success. The trouble
lay not in the law itself, but in the fact that a competent
and honest staff had never been appointed to enforce it.

The conventional statement of this theory, in this

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 80.

164 The Dry Decade

case made before a committee of Congress in 1926 by an
earnest advocate of prohibition, ran as follows :

"As yet, prohibition has not even had a Chinaman's
chance. , . . The blame is not on prohibition, but on the
political conspiracy that has so largely filled the en
forcement positions with crooked and corrupt ap
pointees who were selected to insure that the prohibi
tion law could be violated with impunity for the profit
of professional bootleggers and the venal politicians who
are their silent, powerful partners/' 15

The moral of this theory, so frequently stated in the
early years of prohibition, was that the law must be
taken out of the hands of its enemies and put in the
hands of its friends. This was clear enough in theory.
The problem was how to put the law any more in the
hands of its friends than it had been from the very
start.

For while the friends of prohibition might feel that
Congress interfered too much for the good of the service
in the matter of appointments, this was the same Con
gress whose dry majority was committed to enforce
ment. "Each year," said Mr. Wayne B. Wheeler in
1926, "the Congress that has been elected has been
dryer than its predecessor. " 16 Meantime, the prohibition
commissioners who actually appointed agents of the
law, decided questions of administrative policy and set
their staffs an example in the matter of personal integ
rity, were men who had received not only the warm but
the enthusiastic endorsement of the prohibition organ
izations.

Mr. John F. Kramer, the first Commissioner of

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary > 6gth Congress, 1st Session, p. 1606.
p. 868.

The Battle of Propaganda 165

Prohibition, was so thoroughly satisfactory to the Anti-
Saloon League that after he had taken leave of public
office it sent him on a lecture tour. 17 Major Roy A.
Haynes, who took command in 1921, was endorsed by
Mr. Wheeler as the right man for the office 18 and
described in the House of Representatives by Mr. Up-
shaw of Georgia as an executive of "unsullied integrity"
whose "amazing genius and energy" had encouraged
every friend of prohibition. "The story of his victories,"
in Mr. Upshaw's judgment, " reads like a revised edition
of the Acts of the Apostles, with Scottish Chiefs and the
Arabian Nights thrown in." 19 --

These ^two. ..a^isinistcators. of the law, actively in
charge of enforcement work for the first five years of
prohibition, unquestionably had the confidence of the
chief spokesmen of prohibition in Congress and outside
of Congress. Unquestionably they did their best to. find
an honest staff of agents. Mr. Haynes, in fact, insisted
not only upon honesty in making appointments to his
staff but demanded active sympathy with the whole
purpose of the law itself. "No man can do his best work
for a cause in which he does not personally have faith,"
he explained in 1923. "So far, therefore, as it has been
possible to man the unit with employees of proved
ability and of known adherence to prohibition prin
ciples, the force has been built up of men who believe
wholeheartedly in the daily tasks they are perform
ing." 20

Apparently the trouble was that men who believed

l7 Rtport of the Senate Committee on Campaign Expenditures,

1 026, p, 1406.

18 New York Times, January 29, 1925.
^Congressional Record, 6yth Congress, 4th Session, p. 1512.
20 New York Times, August 26, 1923.

166 The Dry Decade

wholeheartedly in the daily tasks they were performing,
when they first entered public office, found it difficult
to retain this frame of mind in view of the temptations
they were later offered. Such temptations were per
sistent and beguiling. Mr. Haynes himself reported, in
the course of his third year in office, that " there appears
"tCTBe no^limit to the size of the bribe an illegal liquor
industry is willing to offer and pay. . . . Millions of
dollars piled upon other millions are strewn carelessly
across the pathway of those engaged in law enforcement.
All or anything that human fancy can devise or desire
is offered unhesitatingly. The reverberating chorus of
corrupt dollars sounds day and night in the ears of all
classes of employees of the enforcement unit/' 21

The clink of these dollars in the ears of a prohibition
agent receiving the regulation beginner's salary of $35
a week may be readily conceived. Vast quantities of
alcohol could be diverted from their lawful purpose
with the right kind of assistance in Chicago, San
Francisco, or New York. Offers of bribes occasionally
reached astonishing proportions. Mr. Haynes described
one state administrator, "on a salary of $6,000, who
estimated "that within a given month's time he coiHd
have accumulated at least $i,ooo,ooo." 22 This sum Mr.
Haynes described as "higher than the average." Pre
sumably it was very much higher, but it suggested the
opportunities latent in the enforcement of the law.

These opportunities being what they were, the
essential problem in ridding prohibition of corruption
was not the problem of putting the law in the hands of
its friends, which had been done on numerous occasions,
but in keeping its friends from one year to another.
**New York Times, July 15, 1923.
., July 16, 1923.

The Battle of Propaganda 167

There were various possibilities. Congress might ap
propriate salaries large enough to offer a better guar
antee against corruption. The public might accept the
law wholeheartedly, in which case there would be no
market for bootleggers, no profits, and no bribes. A
type of enforcement agent might be developed, so
loyal to the cause that temptation could not budge him.

The friends of prohibition declined to be discouraged.
The law was young. It deserved its day in court.
Time was long, and the morals of the Prohibition Bureau
would improve with age.

The question of corruption was unique in one
respect. Here, at least, there were certain dependable
figures of the federal government concerning dismissals
from its own service. To this degree, the extent and
character of such corruption in public office as had been
introduced by prohibition could be measured without
bias. Over most other questions concerned with the
social results of this experiment, a sharp dispute had
developed by 1925, in which every relevant fact was
stubbornly and bitterly contested.

This was true, for example, of the controversy over
the effect which prohibition had had upon the evil it
was originally designed to cure: the evil of intoxication.
A great many sets of figures on this point had come
into existence by the end of 1925. The two most widely
quoted, by friends of the law on one side and its critics
on the other, were those assembled by the World League
Against Alcoholism and the Moderation League, Inc.
The first set of figures, covering arrests for intoxication
in 300 American cities from 1913 to 1923, received the
warm endorsement of the Anti-Saloon League and

168 The Dry Decade

other prohibition organizations. The second set of
figures, covering arrests in 350 cities from 1914 to 1924,
was more often quoted by opponents of the law.

In a broad way these two reports agreed upon one
fact. During the three years 1918, 1919, and 1920 there
had been a steady decrease in arrests for intoxication,
compared with earlier years, and therefore a presumptive
decrease in intoxication itself. After 1920, both reports
agreed that the curve turned up again. How sharply up,
however, was a point involved in great dispute.

According to the World League Against Alcoholism,
the upturn was not important enough to discredit the
results achieved by prohibition. The first four prohibi
tion years from 1920 to 1923 showed an average of
383,711 arrests in the 300 cities on the World League's
list, compared with an average of 572,106 arrests in
these same cities for the four pre-prohibition years
from 1913 to 1916. Taking account of an increase in
population, the World League estimated that arrests
for drunkenness had decreased by 42.3 per cent as a
result of prohibition. 23

Meantime, according to the Moderation League,
which dealt in yearly totals rather than in averages for
periods of years, the number of arrests had increased
steadily from 226,070 in 1920 to 306,866 in 1921, to
412,640 in 1922, to 483,753 in 1923 and finally to
498,752 in 1924. At this point it was higher than the
figure for any preceding year since 1917 and practically
back at the pre-prohibition figure of 506,737 for igi^

There are several reasons which explain the radically
different conclusions at which these two reports arrived.

^New York Times, November 24, 1924.
^Hearings of a Subcommittee of ike Senate Committee on the
Judiciary 9 6gth Congress, 1st Session, p. 354.

The Battle of Propaganda 169

For one thing, the authors of the two reports went to a
number of different places for their data. In South
Dakota, for example, the World League drew its figures
from Aberdeen and Lead; the Moderation League, from
Sioux Falls, Watertown, and Huron. In Illinois six towns
and cities appeared upon both lists; three others only on
the list of the World League; and seven others only on
the list of the Moderation League. Similar discrepancies
occurred in practically all states.

In the second place, the actual figures presented in
the two reports disagreed in many instances. There
were 45,226 arrests for intoxication in Philadelphia in
1923 according to the World League and 54,124 arrests
in the same city in the same year according to the
Moderation League. There were 10,643 arrests in
New York City and 11,947 in Detroit, according to the
first report; 13,141 in New York City and 12,977 in
Detroit, according to the second.

In the third place, the comparison between averages
in one report and totals in the other was confusing, and
in itself the subject of a bitter controversy. Partisans of
the World League charged that the figures of the Moder
ation League were "deceptive and misleading" because
they failed to take account of an increase in population. 25
Partisans of the Moderation League charged that the
World League had fallen back on averages for four-year
periods in order to conceal an alarming recent upturn
in the curve. 26

Added to these differences in method and in content
in the two reports themselves, there was a sharp dis
pute over the interpretation which could properly be

York Times, December 3, 1925.
^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 355.

170 The Dry Decade

placed on any figures for arrests. Friends of prohibition
insisted that if 383,711 people in 300 cities were still
being arrested for drunkenness in the fourth year of
this experiment, it was for one important reason be
cause of increased severity on the part of the police.
On this point, as the result of inquiries addressed to
various municipal authorities, the World League es
timated that nine out of ten offenders were now being
arrested for intoxication, as compared with two out of
five in the days before the adoption of a national pro
hibition law. 27

To the wets, this theory of an aroused police force
seemed too hopeful. The police, they argued, had little
sympathy with prohibition, as was amply demonstrated
by the complaint of the drys that in many cities the
existence of speakeasies was regarded with the utmost
complacency by mayors and the heads of police depart
ments. If the police would not enforce the law against
an illicit industry, they would not be likely to harass the
patrons of its trade. Moreover, it seemed to critics of
this law that since one result of prohibition had been to
increase the production of liquor brewed at home, a
great deal of drinking, and a great deal of intoxication,
now took place away from the streets and behind closed
doors, where there was no occasion for it to appear on
the blotters of police departments.

The net result of these contradictory sets of figures,
and of the argument which arose over the proper method
of interpreting them, was presumably to convince no
one who was not prepared to be convinced. People
who liked to believe that prohibition was a success

2l7 Robert E. Corradini, research secretary of the World League
Against Alcoholism, quoted, Irving Fisher, Prohibition at Its
Worst, p, 32.

The Battle of Propaganda 171

despite the handicap of lax enforcement cited the figures
of the World League Against Alcoholism, to show that
arrests for intoxication, while still in the hundred
thousands, had been appreciably reduced. People who
preferred to regard the law as a failure cited the figures
of the Moderation League to prove that arrests for
drunkenness were practically back at their pre-prohibi-
tion figure, without taking account of a probable in
crease of drunkenness in private homes.

There was every opportunity here for anyone in
terested in the results of prohibition to fortify his per
sonal prejudice with highly documented facts, and
plenty of evidence to suggest that individual observers
were taking advantage of the opportunity. When a
committee of the Senate inquired into conditions exist
ing at the end of 1925, it was able to discover men who
could perceive precisely the same set of facts in the
same place at the same time in profoundly different
lights.

Three instances are typical. By one clergyman the
committee was told that in the mining towns of Pennsyl
vania prohibition had enormously increased drinking
and introduced an illicit still "into practically every
other home"; by another clergyman from the same
section of the country, that drinking was a thing of the
past and that in five years of prohibition he had never
seen a still. 28

By an official of the Salvation Army the committee
was informed that cases of poverty in New York City as
a result of drunkenness were only a fiftieth of what
they used to be, and by a judge of the Court of General
Sessions, having much to do with these same people,

^Hearings of a Subcommittee cf the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, pp. 423, 1240.

172 The Dry Decade

that prohibition had multiplied at least by three the
menace of drunkenness in the tenement districts of the
city. 29

From a representative of organized labor the com
mittee learned that intemperance among workmen was
" constantly increasing/' and from an employer of labor
that intemperance among workmen was no longer a
problem for the manufacturer. "Before prohibition I do
not remember ever seeing a milk wagon in our mill-
yard. Every morning there are three or four milk wagons
there, and the men are using milk in place of beer." 30

The same paucity of official data, the same heated
dispute over the manner in which these data should be
interpreted, and the same striking variations between
the first-hand observation of one observer and the next,
all characteristic of the controversy over the effect of
prohibition on intoxication, were also characteristic of
a disagreement over the effect ^of prohibition on the
nation's health.

Into this disagreement voluminous sets of figures were
introduced, showing the number of cases of alcoholism,
alcoholic poisoning, cirrhosis of the liver, insanity, and
drug addiction received from year to year by hospitals
in a long list of cities. If such figures showed a tendency
to rise, it was frequently the practice of friends of pro
hibition to dismiss them on the ground that they came
from centers of opposition to the law and therefore
failed to measure the benefits to be had from strict en-

H tarings of 'a Subcommittee of the Senate Committee Qn the
. Judiciary y 6gth Congress, 1st Session, pp. 678, 146.

pp. 277, 808.

The Battle of Propaganda 173

forcement. If they showed a tendency to fall, the en
emies of prohibition argued that they were necessarily
local figures, unimportant as an index of conditions
existing in many populous industrial cities, where an
unpopular law had raised formidable problems.

Meantime, there was little by way of an authentic
summary of conditions on a national scale available to
partisans on either side. The Census Bureau, it is true,
had for some years tabulated deaths from alcoholism
in the United States Registration Area. For the seven
years from 1911 to 1917 such deaths had been prac
tically stationary at 4.9, 5.3, 5.9, 4.9, 4.4, 5,8, and 5.2 per
100,000 people; for the three years from 1918 to 1920
they had fallen sharply to 2.7, 1.6, and i.o; in 1921 they
had begun to rise, and from that year forward to 1925
they had stood at 1.8, 2,6, 3.2, 3.2, and 3.6 respectively. 31

In a broad way these figures agreed with the down
ward curve and then the upward curve in arrests for
intoxication reported by both the Moderation League
and the World League Against Alcoholism. There was
a large element of risk> however, in using these figures
as a peg on which to hang broad statements. Deaths
from alcoholism played an extremely small part in the
mortality figures of the United States, at no time in
any of these years, either before or after prohibition,
accounting even for the death of one person in every
sixteen thousand. A change in such figures might con
ceivably suggest a tendency, but as an index of the
habits of the average American these figures were of
little value.

For statisticians interested in exploring the results of
prohibition there was more fascination, in these cir
cumstances, in experimenting with figures on a larger
^Mortality Statistics, Bureau of the Census, 1911-1925.

I 74 The Dry Decade

scale: such figures, for example, as the data of the Cen
sus Bureau on public health in general, as reflected in
the death rate for all causes. Here there was clear evi
dence of steady progress over a long period of years.
Reports of the Census Bureau for the United States
Registration Area showed that in the five years follow
ing 1900 the average death rate was 15.9 per thousand
people; that in the five years before the entrance of the
United States into the World War the figure had
dropped to 14.6; and that in the first five years of prohi
bition it had dropped again to I2.7. 32

The question at issue was whether prohibition had
played any part in the lowering of the death rate in
these last five years. Partisans of the law claimed that
it had, and if they were devout enough in their par
tisanship claimed on behalf of prohibition entire credit
for the reduction. Thus Mr. Wheeler declared in 1924
that "the saving of human life since prohibition reduced
the death rate is equivalent to a million lives/' 33

To critics of the law this seemed too large a count.
Various things had been happening in these five years,
they insisted, aside from an experiment- with prohibi
tion. Medical science had improved, hospital methods
had improved, new serums and new vaccines had been
discovered, schools and insurance companies had ini
tiated health campaigns, the standards of public
hygiene were steadily advancing. If prohibition was
responsible for lowering the death rate in the United
States, critics of the law asked why the death rate had
also fallen in these years in many European nations
which still permitted the use of intoxicating liquors.

^Mortality Statistics, Bureau of the Census, 1901-1905, 1912-
1916, 1920-1924.

York Times, November 27, 1924.

The Battle of Propaganda 175

Argument was based on faith. There were people
who felt in 1925 that prohibition was entirely responsible
for any gain in public health, people who felt that it
could fairly claim some portion of the credit, people who
felt that it had played no part whatever, and people who
felt that its effect had been definitely harmful, slowing
down progress which would have been more rapid if a
large quantity of impure and poisonous liquor had not
flooded the country in the years from 1920 to 1925.

There was no way in which any of these people could
establish indisputable proof of their theories on the
basis_of existing data.

The claims of rival prophets, the conflict between
hostile theories and the will to believe what each ob
server wished to believe, all reached their climax in the
dispute over two final points widely debated in these
years : namely, the question of what effect, if any, pro
hibition had had upon crime in the United States, and
the question of what effect, if any, it had had upon the
prosperity which the country began to enjoy in increas
ing measure after its first post-war depression.

As might have been anticipated, the range of these
two questions was sufficiently wide to open the door
to sweeping statements made with great finality. Since
crime and prosperity were even more complex in their
causes than public health and arrests for intoxication,
more difficult to measure accurately and more difficult
to understand, it was correspondingly easy to be
apostolic about them. On frequent occasions statesmen
on both sides of this dispute confused hypothesis with
fact and snap judgment with profound and sober re
search.

176 The Dry Decade

The conclusions reached by this procedure could be
many miles apart. In the matter of crime, for instance,
it seemed clear to Mr. Hudson Maxim that prohibition
had suddenly "changed the law-abiding American peo
ple into the most lawless people in the world" and
"filled our prisons with lawbreakers till the doors
bulge/' 34 To Mr. Wheeler, on the other hand, it seemed
no less clear that crime in a prohibition country had
almost ceased to be a problem. "The crime rate has so
decreased that many jails are closed. Others are sold.
Our penal population is below the average of license
years." 35

On the whole, what data were available concerning
crimes of a serious character lent themselves to more
effective use by critics of the law than by its friends.
In the opinion of the Census Bureau the most reliable
figures concerning prison population were those showing
admittance to penal institutions following sentence in
the courts. 36 In this respect the census figures showed a
decided increase in the number of prisoners admitted to
federal and state prisons and reformatories over a
period of sixteen years. In 1910 the number of such
prisoners was 32.3 per 100,000 people; by 1923 it had
increased to 34.6; by 1926 it had again increased to
41. 8. 37

The question at this point was whether prohibition
had or had not played an important part in this increase.
To many critics of the law the case seemed clear enough.

^Hearings of a Subcommittee of the Senate Committee on ike
Judiciary, 6gth Congress, 1st Session, p. 173.

^New York Times, November 27, 1924.

^Prisoners in State and Federal Prisons and Reformatories,
1926, Bureau of the Census, 1929, p. 5.
p. 7.

The Battle of Propaganda 177

Prohibition had fostered an illicit traffic. It had hung up
enormous prizes for such gangs as infested many of the
larger cities. It had diverted the attention of at least
some part of the police from the prevention of crimes
like burglary and homicide to a pursuit of illicit pints of
liquor. By persuading otherwise law-abiding citizens to
set an example of lawlessness with respect to this one
law, it had fostered lawlessness in general.

To these arguments the friends of prohibition took
exception. By no reasonable process of deduction, they
insisted, could such crimes as burglary and homicide be
traced to prohibition. Crimes of this sort had their
origin in other sources, entirely independent of federal
control of intoxicating liquor. Some increase in serious
crime had usually followed in the train of war. This had
been true in other countries in the present case. "It is
quite possible," the Federal Council of Churches sug
gested in 1925, "that the effect of prohibition is really
shown in the retardation of the post-war crime reac
tion." 38

Meantime, while commitments to federal and state
prisons were increasing, so were bank deposits, wages,
corporation profits, real estate values, the assets of
building and loan associations, the production figures
of American factories, and the prices of common
stocks.

It is characteristic of the whole argument over the
social effects of prohibition that immediately the posi
tion of the two factions was reversed. It was now the
wets who insisted that it was wholly unfair to drag
prohibition into the argument as an explanation of
prosperity, and the drys who discovered here clear

^Hearings of a Subcommittee of tine Senate Committee on the
Judiciary, 69th Congress, 1st Session, p. 378.

178 The Dry Decade

proof of cause-and-effect which they had been unable
to find in the case of prohibition and the prisons.

On both sides the argument was familiar.

To the wets it seemed certain that prosperity was the
result of influences wholly remote from prohibition.
In support of this contention they pointed out that most
of the large cities, where prohibition was unpopular
and unsuccessfully enforced, were at this time enjoying
unusual prosperity, with high wages and rising values,
whereas the rural sections of the country, which favored
the law and more nearly observed it, were bitterly com
plaining of hard times, insisting that farm values had
depreciated to the extent of fifteen or twenty billion
dollars and demanding prompt relief from Congress.

To the drys the plight of the farmer was a political
affair, but the prosperity of the towns was the clear
result of six years of prohibition. This new law had fos
tered sober habits. It had therefore promoted efficiency
in industry and set new standards of production. It had
saved for more useful purposes the vast sums of money
which had been spent for liquor in the days before the
war and diverted this money to the building of homes,
the purchase of bonds, and the acquisition of radios and
motor cars.

On this theory of prohibition as the guiding genius
of prosperity, the drys erected a superstructure of
claims which were fully as broad and as sweeping as the
contrary claims of those wets who indicted prohibition
as the sole cause of a crime wave which had filled the
prisons till their doors burst.

To Mr. Wheeler it seemed clear that prohibition was
primarily responsible for the gain in bank deposits, the
issuance of an increasingly large number of life insurance
policies and the vigor of the building boom which had

The Battle of Propaganda 179

appeared in 1924** Prohibition had eliminated "pau
perism and the slums that clustered around their
creator, the saloon/' 40 It was the principal factor in
financing "vast expenditures on moving pictures,
athletic equipment, and other wholesome entertain
ment," in sending "throngs of youths and girls to high
school and college by eliminating the liquor drain on
the family purse," and in "making roads safer for the
four million automobiles manufactured last year, many
of which were bought by former impoverished drink
ers." 41

These views were shared in other quarters.

Mr. Irving Fisher submitted figures to a committee
of Congress in 1926 to support the claim that prohibition
now added to the income of the United States six billion
dollars a year, "without counting any savings in the
cost of jails, almshouses, asylums, etc., or any economic
savings from reducing the death rate." 42

The World League Against Alcoholism estimated
that since arrests for intoxication had been reduced by
42.3 per cent as a result of prohibition, and since each
arrest cost $94 01^ the average, the country now saved
nearly a hundred million dollars annually in this one
item. 43

Major Haynes found in the Eighteenth Amendment
the fundamental explanation of America's position as
creditor of a "drink-fettered Europe" and declared
that prohibition had introduced a new regime in in-

39 New York Times, November 27, 1924.
^Ibid. y January 16, 1926.
* l lbid., December 25, 1923.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 1022.
York Times, November 24, 1924.

i8o The Dry Decade

dustry: "We are the only nation in the world without an
unemployment problem/' 44

The proprietor of two thriving hairdressing shops in
Washington was quoted in the press as saying: "It
is very easy to trace the growth of the beauty parlor
business to prohibition. When men drank, they were not
so critical. Their wives and sweethearts looked attrac
tive to them without the assistance of beauty parlors.
Now, however, men remain clear-eyed all evening and
notice wrinkles, pallor, straight hair and unsparkling
eyes. As a result, the women are flocking to beauty par
lors and we have to turn many away every day." 45

At this point, it merely remained for some economist
with a set of charts and a talent for round numbers
to compute how many million or billion dollars a
renaissance in the cosmetic trade had put in the pockets
of a sober nation.

The fact of the matter is, that while anyone could
believe what he wished to believe, and find ample
evidence to uphold his convictions after he had reached
them, a large part of the argument over the effect of
prohibition on both prosperity and crime was not sus
ceptible of proof. It was possible to feel deeply that
prohibition must inevitably be an important factor in
such questions; it was possible to demonstrate with
towering sets of figures that this or that had happened
to bank deposits or to building loans or to jail admit
tances, over one period of years as compared with
another period of years; but to trace the precise re
sponsibility from columns of figures back to prohibi-

^New York Times, August II, 1923.
*Ilnd. 9 April 13, 1922.

The Battle of Propaganda 181

tion, as a cause, was a procedure which did not lend
itself to a scientific method when it was applied in
discriminately to thousands of individual cases as if
they were all alike.

Even in the individual case itself, it was difficult to
get back to single concrete causes in matters as complex
and as involved as prosperity and crime. Psychologists
might study for a year the record of a young criminal
committed to prison by the courts and still feel uncer
tain, if they were good enough psychologists, precisely
how much influence they could properly attach to pre
natal influence, to physical equipment, to inherited traits,
to early environment, to later associations, to immediate
temptation or to a variety of other factors which had
little to do with intoxicating liquor or the Volstead Act.

If any one of these psychologists had suddenly an
nounced that here was a case in which pre-natal influence
did not matter, physical equipment did not matter,
early training did not matter, environment did not
matter, and nothing mattered save the fact that the
United States now had a prohibition law, his colleagues
would have laughed at him. Yet it was precisely with
out regard to the complex pattern of influences at work
in the individual case that prohibition was denounced
as the exclusive source of a new crime wave. It was
precisely without regard to the complex pattern of such
economic factors as the availability of ample credit, the
increasing use of electrical power, the progress of
mechanical science, the existence of a sound banking
system, the purchasing power of other countries, and
the maintenance on a world scale of a satisfactory
balance between production and consumption, that
prohibition was acclaimed as the fountainhead of all
prosperity.

182 The Dry Decade

The difficulty in arriving at indisputable conclusions
about prohibition as a social and industrial influence
lay deep down. Not only had such questions failed
to receive more than passing notice from the great re
search societies and the scientific foundations which
might have studied them with profit; not only did most
of the fodder for this controversy come from partisan
organizations which were concerned with the pleading of
a special case and therefore not immune from self-
deception; in addition, there were certain far-reaching
questions concerning the results of prohibition which
no amount of disinterested and expert research could
have answered mathematically in 1925, with any equip
ment which science had yet made available for the
measurement of men and institutions in the mass.

This fact, however, did not deter champions on either
side from rushing into print with bulletins announcing
ultimate conclusions. Year by year the controversy
broadened. Year by year it increased in vigor and in
tensity as new claims were made, new documents piled
up, new challenges rang out, and new figures were scat
tered broadcast in an effort to capture the loyalty of a
public which surveyed the results of this experiment
from profoundly different points of view and with some
evidence of an increasing bitterness of feeling.

CHAPTER VIII
The Deadlock of 1926

VXNE result of the policy pursued by the federal
government jiovra to the end of 1925 was to restore at
least in part the old days of local option. Since Congress
had created no machinery capable of enforcing the
law systematically and even-handedly throughout the
country, each community was thrown back on its own
resources. It could not choose what type of legislation
it would have, but it could choose how much it would
enforce the legislation which had been given it. Kansas
had one standard. Georgia a second. Downstate New
York a third. Upstate New York a fourth. Other parts
of other states had other standards. Those communities
which liked the law enforced it. Those communities
which did not like the law enforced it only to a point
consistent with the prevailing mood of local sentiment.

Whatever value was to be set upon the results of this
experiment whether it had fostered crime or pre
vented crime, whether it had ruined the farmer by
shutting off one market for his grain or added billions
of dollars to the income of the nation it was clear by
1926 that new methods of enforcement must be tried if
the government wished to put an end to an illicit liquor
traffic in all sections of the country.

Drives had failed to solve the problems of the

183

1 84 The Dry Decade

Prohibition Bureau. Sporadic raids had proved to be
no substitute for steady pressure. Episodes like General
Butler's march through Philadelphia had ended in a
discovery that not very much had happened. The power
of the courts to enforce the law was crippled by their
lack of real authority. If they attempted to impose jail
sentences, on the theory that only jail sentences would
prevent frequent violations of the law, they found
themselves confronted by more cases involving jury
trials than they could handle. If they attempted to keep
their dockets clear they were compelled to resort to
light fines on bargain days and the restoration of a
license system.

The stage was set in 1926 for a bolder and more
powerful effort to enforce the law than any effort which
the country had yet witnessed. Every detail of the
existing situation pointed in this direction. The first
investigation made by a committee of Congress into
the progress of enforcement had disclosed the failure of
the government to control important sources of pro
duction. 1 The estimate of General Andrews that his
bureau had not been able to seize more than one tenth
of the stills in operation or more than one twentieth,
of the liquor run across the border had been broadcast
by the daily press. The Department of Justice was
insisting that "additional judges and increased office
help for United States attorneys are absolutely neces
sary/' 2 The militant prohibition organizations them
selves were vigorously complaining of a lack of effective
effort: their protests ranging from Mr. Wheeler's crit-

l Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session. Cf. Chapter V, supra.

^Report of the Attorney General of the United States, fiscal year
ended June 30, 1925, p. 39.

The Deadlock of 1926 185

icism on the score of industrial alcohol to the com
plaint of the United Committee for Law Enforcement
that the law had never been enforced "beyond the
point where, in the opinion of the enforcers, it would
hurt the party in power by enforcing it." 3

The one logical alternative to a great effort to create
more machinery of law enforcement in 1926 was to
reduce the amount of law to be enforced. This was only
a theoretical alternative. A dry majority was in com
plete control of Congress. It took its cue from the
leaders of the prohibition movement. Enforcement
might be difficult, but in the opinion of these leaders
this was the last reason in the world to change the
law.

"The very fact that the law is difficult to enforce/*
said Mr. Wheeler in April, 1926, "is the clearest proof
of the need of its existence." 4

With such a slogan there could be no course but
forward.

The program of enforcement placed before Congress
and the country on behalf of the Prohibition Bureau in
1926 was a far-reaching program, though it failed to
come to grips with the central problem of an adequate
supply of men and money. This was, and always had
been, an embarrassing question: embarrassing to an
Administration which was making its reputation on a
record of economy, embarrassing to prohibition leaders
who did not like to see the cost of enforcement pushed

3 Chapter VI, supra.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, ist Session, p. 1626,

1 86 The Dry Decade

too high, embarrassing to a Congress reluctant to tax
the public heavily for enforcement of a law concerning
which there existed a wide difference of opinion, em
barrassing to a public which at no time liked to pay
more taxes for any purpose than it had to.

General Andrews gave the House Judiciary Com
mittee an idea of the responsibilities involved in a
realistic effort to enforce the law, when he testified that
on the basis of his experience it would require an army
of from 12,000 to 15,000 men to handle the compara
tively minor problem of preventing smuggling on the
border. 5 Needless to say, the House Judiciary Com
mittee did not think it necessary to refer again to this
phase of the matter. General Andrews himself asked
only for a modest increase of $3,000,000 in the budget
of his bureau, to cover all his problems. 6

Nevertheless, though it skirted the question of ap
propriations, General Andrews's program was by all
odds the most ambitious program of enforcement sub
mitted to Congress by an official of the federal govern
ment in the first six years of prohibition. For all five of
the major sources of production which had flourished
despite the best efforts of the Prohibition Bureau,
General Andrews recommended the adoption of legisla
tion giving the government new authority.

He urged that the control of the Prohibition Bureau
over the distribution of medicinal liquor be broadened. 7
He proposed that all manufacturers of cereal beverages
be required to take out a federal permit, give bond, and
subject their plants to federal inspection. 8 He asked for

*New York Times, April 13, 1926.
*Ibid.> April 17, 1926.
id., April 3, 1926.

The Deadlock of 1926 187

power to search American ships beyond the twelve-
mile limit, power to confiscate vessels captured by the
government, and power to negotiate new agreements
with foreign countries, in an effort to reduce smuggling
by sea and along the borders. 9 He proposed that Con
gress permit the Prohibition Bureau to confiscate such
industrial alcohol "as does not substantially comply
with the formula under which it is authorized to be
manufactured/ 510 He asked for power to search private
dwellings to discover illicit stills, not only on warrants
charging sale, as provided in the Volstead Act, but
also on suspicion of manufacture for commercial pur
poses. 11

It was important to make this last change, in General
Andrews's opinion, because "the liquor traffic operators
have taken advantage of the protection afforded private
dwellings, from entry by search warrants, to use them
as distilleries. They rent these dwellings and establish a
family whose occupation is to distill alcohol for the
bootleg trade. They instruct them never, under any
circumstances, to sell any liquor on the premises/' 12
In these circumstances the government was powerless to
interfere. It must have more authority.

If the grant of this authority involved a risk that law-
abiding homes would be invaded by raiding parties
whose suspicions turned out to have been ill founded,
that risk must be accepted.

"I cannot impress you too much/ 5 said General
Andrews to a committee of the Senate, "with my
feeling of the necessity that Congress shall give us

9 New York Times, April 20, 1926.
lQ Ibid., April 3, 1926.
*Ibid. 9 April 3, May 8, 1926.
id.> April 3, 1926.

1 88 The Dry Decade

these laws and this assistance and an opportunity to
show what can be done/' 13

Accompanied by various briefs and a sheaf of mem
oranda, General Andrews' s program was submitted to
Congress in April, 1926. This Congress, elected in 1924,
had been described by Mr. Wheeler as the dryest Con
gress on record, "surpassing its predecessors in the
majority to sustain and enforce constitutional prohibi
tion/' 14 According to Mr. Wheeler's data, there were 72
drys in the Senate against 24 wets, 319 known friends
of the law in the House against 105 opponents, 15 In both
cases the majority was practically three to one. If Mr.
Wheeler's figures were correct, the friends of prohibi
tion had ample power to force the immediate adoption
of General Andrews's legislation in the House and to
invoke cloture in the Senate in case of a filibuster.

What followed was another demonstration of the lack
of interest which a dry Congress could display in a dry
program. Though General Andrews appeared before one
committee of Congress or another on eight different
occasions in the month of April to urge the adoption of
his bills, 16 though he declared that the Prohibition
Bureau would be seriously handicapped by the failure of
this legislation, 17 and though his efforts to obtain action

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 1434.

14 New York Times, November 27, 1924.

15 Ibid., November 7, 1924.

16 House Judiciary Committee, April 12 and 19, 1926; sub
committee of the Senate Judiciary Committee, April 5, 6, 14,
15, 23, and 24, 1926.

17 New York Times, April 27, 1926.

The Deadlock of 1926 189

were reinforced by pleas from the Methodist Board of
Temperance and other prohibition organizations/ 8 not
one of the bills designed to give the government new
power to deal with the sources of illicit liquor was
adopted by the Congress to which it was submitted with
a plea for urgent action.

The House gave its approval to a bill separating
the Prohibition Bureau from the office of the Commis
sioner of Internal Revenue and finally bringing the en
forcement staff under civil service regulations. 19 It voted
a million dollars with which to begin work on nine new
cutters for the Coast Guard and increased the appropria
tion of the Prohibition Bureau by 2,3 22,445 . 20 The
ambitious bills which were to give the government new
authority to deal with the major sources of production
were put aside. First the Judiciary Committee of the
Senate whittled away some of their more ambitious
sections; 21 then the leaders of the House decided that
since the Senate was plainly in no mood for action and
since 1926 was an election year, it would be a stroke of
statesmanship to let the whole affair go over. 22

Six months later, when this same Congress reassem
bled for its final session, General Andrews confessed
in an address before the Woman's Christian Temper
ance Union that his program for a new era in the Pro
hibition Bureau was "not progressing any too happily"
and that he had "not encountered any undue eagerness
on the part of Congress to get behind law enforce-

18 New York Times, May 10, 1926.

19 H. R. 10729, 6gth Congress, ist Session.

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 2.
21 New York Times, May 8 and 15, 1926.
W., June n, 1926.

190 The Dry Decade

ment." 23 The Senate managed on this occasion to
adopt the bill bringing the Prohibition Bureau under
civil service regulations, but the bills that were to
deal with the unflagging sources of production per
ished.

Four months after the adjournment of Congress it
was discovered that not even the bill to establish civil
service regulations could be effective for some time,
since Congress had failed to appropriate funds for its
enforcement. 24

If the collapse of the Andrews program took place
quietly and unostentatiously, another bold hope gently
laid to rest as public interest petered out, it was for one
reason because certain new and challenging issues had
suddenly thrust themselves into the controversy over
prohibition and captured the attention of both Congress
and the country.

The first of these issues had its source in an unex
pected order issued from the White House in May,
1926, within a month of the time when the Andrews
program was first placed in the hands of Congress.
This order was signed by Mr. Coolidge. In a brief
paragraph it authorized the appointment of "any
state, county or municipal officer ... at a nominal rate
of compensation, as a prohibition officer of the Treasury
Department," except in cases where such appointment
was specifically forbidden by local statute. The purpose
of giving federal authority to local officers, the President
explained, was "in order that they may more efficiently

^Associated Press dispatch, Washington, January 25, 1927.
id., Washington, July 16, 1927.

The Deadlock of 1926 191

function in the enforcement of the National Prohibition

Act." 25

The storm of protest which this order aroused was as
sudden as the appearance of the order itself and as
violent as any protest which six years of prohibition had
developed. Journals as staunch in their support of the
Coolidge Administration as the New York Herald
Tribune described the order as "confusing and danger
ous," running counter "to the whole trend of Mr.
Coolidge's governmental philosophy, which has stressed
the importance of state government and the necessity
of respecting its integrity/' 26 The New York Times
could find no explanation of the order save that some
one in the Prohibition Bureau had suggested it "and
Mr. Coolidge, in the pressure of duties and campaigns,
must have signed mechanically/' 27 A careful student
of governmental procedure in the United States, Senator
Beveridge of Indiana, insisted that in this case the Ad
ministration had embarked upon a policy "which, if it
succeeds, will radically and fundamentally change our
form of government and change it at once/' 28

Identifying General Andrews as the author of this
policy, Senator Beveridge said: "The former officer
of our regular army who devised this change in the
American system and who is in charge of it tells ^us the
constitutional pretext for it. He says that the hitherto
exclusive police power of the states is now shared by the
central government. If this military and bureaucratic
exposition of constitutional law is sound, then the plan-

York Times, May 22, 1926.
York Herald Tribune, May 23, 1926.
27 New York Times, May 24, 1926.

^Address before the Historical Society of Pennsylvania,
Associated Press dispatch, Philadelphia, June 2, 1926.

192 The Dry Decade

ners and builders of American institutions wrought in
vain. It is obvious that if local officers can be made nation
al officers to execute one national law in a particular local
ity they can be made agents of a general and centralized
government to enforce other laws in every locality." 29

For two weeks Congress, the press, and presumably a
large part of the public debated this new issue with in
terest and intensity. Hot words were exchanged in Con
gress. Various explanations were offered by the execu
tive departments to clarify the issue. On Mr. Coolidge's
behalf it was pointed out that he could scarcely have
wished to attack states' rights when he had just made a
speech defending them, saying, no longer ago than the
previous Saturday, that "the states should not be in
duced by coercion or by favor to surrender the manage
ment of their own affairs." 30 On General Andrews's
behalf it was explained that the executive order had
been "asked for merely to meet a situation in California
where some deputy sheriffs had volunteered to police
rural precincts in cooperation with the federal forces." 31
On behalf of the Department of Justice it was explained
that while the Attorney General had not studied the
order before it was issued he had studied it afterward
and was convinced that it was proper. 32

In the end, after two weeks of angry debate in Con
gress and the firm statement of the Official Spokesman
of the White House that the President would not yield
under fire but intended to stand his ground, 33 the con-

29 Address before the Historical Society of Pennsylvania,

Associated Press dispatch, Philadelphia, June 2, 1926.
30 Address at Williamstown, Va., May 15, 1926.
31 New York Times, May 25, 1926.

The Deadlock of 1926 193

stitutionality of his action was upheld by a vote of 4 to
i in the Judiciary Committee of the Senate and a vote
of 8 to 7 in the Judiciary Committee of the House. 34

This much having been established by the votes of
two committees, and the President having carried his
point with Congress, nothing more was heard about the
matter. No state officials were appointed as agents of
the federal government. No state officials were recom
mended for appointment. No change was made in the
enforcement of the law. Mr. Coolidge's order was filed
away as No. 4439, and the whole question was forgotten.

Scarcely had the echo of this controversy died away,
however, before a new issue appeared, capable of arous
ing a still more vigorous disagreement over the methods
which could properly be employed by the federal govern
ment in its effort to enforce the law. This issue turned
upon the propriety of the government's under-cover
work and particularly its use of the agent provocateur.

It was inherent in the problem of enforcement that
the law could not be invoked without a certain amount
of subterfuge on the part of the government's agents.
As the Assistant Commissioner of the Prohibition Bu
reau explained to a committee of Congress on one
occasion, purchase of evidence was an indispensable
part of the administration of the law. "That is about the
only way, Mr. Chairman, that our agents have of mak
ing cases that will stick in court. They cannot convict
on hearsay, and a person who buys from a bootlegger
will not testify in court against the bootlegger, because
that would cut off his source of supply. So it is necessary

York Times, June 8 and n, 1926,

194 The Dry Decade

for agents to make the purchase, and they can testify
in court that they personally have made the purchase,
in that way getting evidence on which a conviction
may be had." 35

It was difficult to quarrel with this argument without
quarrelling with prohibition. Plainly, if the government
wished to enforce the law, it must in many cases first
tempt people to break the law, in order to have clear
proof of their guilt when it arrested them.

There were various ways, however, of achieving this
result. On certain occasions even the friends of prohibi
tion had found fault with the methods employed by
overzealous officials in their effort to elicit information
which could be used in court. In one case the Controller
General had been forced to overrule the claim of a pro
hibition agent who included in his expense account the
item of $50 lost in a poker game incurred in the line of
duty. 36 On another occasion considerable excitement
was aroused in Congress over the disclosure that $279
worth of supreme of cantaloupe au porte, breast of
chicken Florentine, asparagus Hollandaise, and bonne
fraises au sole had been purchased for a single dinner
at the Hotel Mayflower in Washington by two agents
of the government entertaining a party of suspected
lawbreakers. 37

It was the case of the Bridge Whist Club, however,
which brought criticism of the government's under
cover work to a head and precipitated another contro
versy in Congress, shortly after Mr. Coolidge's execu
tive order concerning state and local officials had ceased
to be a problem. Somewhat casually, in the course of a

^Congressional Record, 68th Congress, 2d Session, p. 961.
^Associated Press dispatch, Washington, May 9, 1925.
37 New York Times, December 19, 1925.

The Deadlock of 1926 195

lawsuit brought to break a leasehold, it was discovered
that agents of the federal government had rented prem
ises at 14 East 44th Street in New York City, estab
lished a popular speakeasy at this address, and sold
liquor freely to all customers over a period of six months
between November i, 1925, and May I, I926. 38

These facts were corroborated by the Treasury De
partment, following their disclosure in New York, and
defended on the ground that the Bridge Whist Club had
served as an important source of information concerning
the activity of liquor smugglers. 39 To the dry majority
of Congress this statement of the case was satisfactory,
but to the wet minority it seemed to carry warning of a
dangerous precedent.

Two other cases of somewhat similar activity on the
part of the federal government were discovered: one
involving cooperation in the management of an enter
prising poolroom-bar in Norfolk, Virginia; the other, a
plan to transport liquor across the Canadian border in
northern New York and dispose of this liquor to boot
leggers who would then be raided. 40 All three of these
cases seemed, to the minority in Congress, to lead the
government along a strange new path which it could not
pursue with honor, to involve it in flagrant treachery,
and to threaten the private citizen with a system of en
trapment which he would find intolerable.

For the better part of three months the debate ran on,
with a succession of statements issued by the Treasury
Department and a fresh dispute reaching new heights
of bitterness in Congress. As in the case of Mr. Cool-
idge's executive order, the upshot was irresolution.

38 New York Times, December 21, 1926; January 27, 1927.
^Senate Document No. 198, 6gth Congress, 2d Session.
"IKd.

196 The Dry Decade

The Treasury Department insisted that violations of
the law were "nationwide in their occurrence and almost
without number"; that "no parallel of this situation
exists in normal times it is similar, rather, to war";
and that "without the employment of under-cover
methods and the willingness of government servants to
become identified with the law violators in order to un
earth their secrets, prohibition enforcement will be
handicapped almost to the point of failure." 41

Simultaneously, however, the Treasury agreed that
its agents ought not to "engage in any illegal practices
or entice others to do so" and confessed that it found
espionage unpleasant business. "No one likes the idea,"
said the Treasury. Unfortunately, "it is as essential here
as it is in war in order to gain necessary intelligence." 42

The conclusion seemed to be that the experiment
with the Bridge Whist Club and the Norfolk poolroom
had been efficacious but distasteful.

There was one other question of a new and highly
controversial character which thrust itself into the fore
ground of public interest at this time, during the year
which elapsed between the appearance and the disap
pearance of General Andrews' s program of emergency
legislation. The Christmas holidays of 1926 had been
marked by an unusually large number of deaths from
alcoholism or alcoholic poisoning, and "poison alcohol"
leapt suddenly and sensationally into the headlines of
the daily papers.

^Senate Document No. 198, 6gth Congress, 2d Session, part 2,

pp. 1-2.

, part 2, p. 2.

The Deadlock of 1926 197

To many critics of the Volstead Act it seemed, in
fact, that the time had come to charge the federal gov
ernment with direct responsibility for these deaths and
to accuse it of the callous and brutal murder of its own
citizens. The federal government insisted upon doctor
ing industrial alcohol with deadly poisons. On the au
thority of the Assistant Secretary of the Treasury,
enough industrial alcohol had been diverted into the
hands of bootleggers in 1925 to manufacture 150,000,000
quarts of liquor. 43 The government knew this to be true
and yet continued to order the use of poisonous dena-
turants : in fact, precisely at this time had ordered that
the quantity of wood alcohol used in one of its common
est formulas be doubled. 44 By what logic, asked the
opponents of prohibition, could such action be defended ?
Senator Edge denounced the government's policy as
"fiendish." 45 Representative Cellar compared it with the
methods of Lucrezia Borgia. 46 The New York State Leg
islature adopted a resolution demanding that Congress
prohibit by law the use of poisonous denaturants. 47

To such criticism as this the government had certain
ready answers.

In the first place, it suggested that deaths attributed
to wood alcohol could more properly be attributed in
many instances merely to heavy drinking. In support of
this theory it cited a letter from the Health Commis
sioner of New York, concerning casualties in that city,
in which this official stated : "We do not know how many
of these deaths were due to acute alcoholic poisoning

^Chapter V, supra.

^Treasury Department order 3929, approved October 8, 1926,

York Times, January 3, 1927.
id., January 4, 1927.
. y March 3, 1927.

198 The Dry Decade

and how many were the result of chronic indulgence in
alcohol." 48

In the second place, the Government insisted that its
policy of using denaturants of a deadly character was
not dictated by a sudden desire to enforce the Volstead
Act more vigorously, but by a policy dating back to
1906, when Congress had adopted a law designed to aid
American industry by making denatured alcohol tax-
free for industrial purposes. On this occasion Congress
had required that "wood alcohol or other suitable in
gredient" be added to this alcohol, in order to keep it
from competing with beverage alcohol on which a tax
was placed. Half of the formulas in use by 1926 predated
prohibition.

In the third place, granting that people had not been
in the habit of drinking industrial alcohol in the days
before prohibition and that this phase of the matter
had become a problem only after 1920, the fact remained
that the Volstead Act also required the use of effective
denaturants and that no satisfactory substitute for wood
alcohol had been discovered. As the chief chemist of the
Prohibition Bureau pointed out: "Being closely related
chemically to ethyl alcohol, having a boiling point only
slightly below that of ethyl alcohol, and having physical
properties closely resembling ethyl alcohol, it is a sub
stance that cannot easily be removed." 49

Finally, it was the Government's theory that doubling
the quantity of wood alcohol would actually protect the
very substantial part of the public which persisted in
drinking illegal liquor. "Under the new formula there
will be less chance of poisoning than heretofore," in
sisted General Andrews. "A strong trace of wood al-
r Document No. ig^ p. 137, 6gth Congress, 2d Session.
i P- 135-

The Deadlock of 1926 199

cohol is so offensive that it will warn the most reckless
drinker." 50

On this point there was some difference of opinion.
Dr. James M. Doran, as chief chemist of General An-
drews's bureau, agreed at this time that wood alcohol
carried "distinctive odorous substances commonly de
signated as pyroligneous compounds that, by their
characteristic odor and taste, at once disclose to the in
dividual the patent fact that the mixture or liquid is
unfit for consumption/' 61 In 1923, however, when the
problem of the Prohibition Bureau had not been a de
fense of the government against charges of using poisons
but a question of helping enforce the law by alarming
people into obeying it, Dr. Doran was quoted in the
press as saying: "It is impossible to detect wood alcohol
except by a thorough chemical analysis performed by a
skilled chemist in a well-equipped laboratory/' 52

In any case, this policy was mandatory. The Volstead
Act required the use of ingredients which could not be
removed. Wood alcohol was the best of these ingredients.
If the law was wrong, it was the business of Congress to
change it. The Prohibition Bureau itself stood on the
theory that drinking in a post- Volstead era was too dan
gerous to be risked but not dangerous enough to point
an accusing finger at the government.

If there was some hesitancy here, and little enthu
siasm for drastic methods merely because they were

50 New York Times, January 9, 1927.

* l Senate Document, No. /P5,p. I35> 69 th Congress, 2d Session.

* 2 New York Times, July 26, 1923.

200 The Dry Decade

drastic, it was not for lack of encouraging support on the
part of the prohibition organizations. At every stage of
the controversy which had run on through these years,
the prohibition organizations had done their best to up
hold the hand of the government and to stiffen its resolu
tion.

The President's executive order concerning the feder-
alization of local officials had been endorsed by the Gen
eral Assembly of the United Presbyterian Church as
sound governmental policy. 53 The Anti-Saloon League
had thrown itself into the controversy over the Bridge
Whist Club and demanded that Congress retain in the
budget of the Prohibition Bureau an appropriation for
the employment of under-cover agents. 54 Mr. Wheeler
had defended the use of wood alcohol and insisted that
"the government is under no obligation to furnish peo
ple with alcohol that is drinkable when the Constitution
prohibits it; the person who drinks this industrial al
cohol is a deliberate suicide/' 55 The Philadelphia branch
of the Woman's Christian Temperance Union adopted a
resolution denouncing as "modification of the Volstead
Act" the proposal to substitute obnoxious but harmless
ingredients. 56 Mr. Atticus Webb, superintendent of the
Anti-Saloon League of Texas, sent a telegram to Secre
tary Mellon insisting on the use of lethal poisons on the
ground that "it is not the function of the Treasury to
make it safe to heap contempt upon the Constitution." 57

Nevertheless, though the government had had this
prompt and vigorous support from many of the most

^New York Times, June i, 1926.

54 Ibid., December 20, 1926.

K Ibid., December 30, 1926.

m lbid., January 4, 1927.

v Senate Document, No. 195, p. 136, 6gth Congress, 2d Session.

The Deadlock of 1926 201

ardent friends of prohibition, it had shown a certain
amount of diffidence and irresolution.

The executive order authorizing federal status for
state and municipal officers had been launched on the
theory that it would substantially improve the enforce
ment of the law, yet no state or municipal officers had
been appointed to federal positions. The Bridge Whist
Club had been described by the Secretary of the Treas
ury as an "exceedingly fruitful" venture, 58 leading to
the discovery of information of great value, yet the
government had decided to have no more whist clubs.
Wood alcohol was defended by the chief chemist of the
Prohibition Bureau as the most effective denaturant
which the government could use, since it was the most
difficult denaturant to remove, yet the government had
used it sparingly until the end of 1926 and then merely
substituted 4 per cent for 2 per cent.

There were signs here of reluctance to pursue appar
ently logical theories to their ultimate conclusions. Par
ticularly in the matter of federal appointments for state
officers, the government's hesitancy raised certain ques
tions of special interest and importance.

Whatever the legal and moral responsibilities of the
states under the Eighteenth Amendment, and this ques
tion was to be debated with increasing vigor as time
passed, it was clear by 1926 that the states had not
given the federal government the effective support
which the authors of the "concurrent" clause had hope
fully anticipated.

^Senate Document, No. 198, p. I, 6gth Congress, 2d Session.

202 The Dry Decade

It is true, of course, that an immense amount of legis
lation had been written on the statute books at the state
capitals. By the end of the first year of prohibition
thirty-eight states had adopted legislation to supple
ment the Volstead Act and by the end of the second year
only a few states remained without enforcement laws.
In many states new legislation was constantly being
added to the original enactment, in an effort to close
gaps which had unexpectedly appeared and to increase
penalties which seemed too lenient.

On the whole the states had made an exceedingly
thorough job of their enforcement codes, not only
matching the Volstead Act, but measurably outdoing it.
Sixteen states had set their standard of intoxicating
liquor at an even lower percentage than the one half of
one per cent established by the Volstead Act. 59 Other
states had prohibited the possession of liquor under any
circumstances, even though legally acquired before the
adoption of the Eighteenth Amendment. Practically all
states immensely broadened the powers of search and
seizure which the Volstead Act had given to agents of
the federal government. 60

On certain points state legislation was particularly
drastic. Vermont adopted a "disclosure law" carrying
a prison penalty for persons who failed to reveal their
source of liquor if arrested for intoxication. Iowa pro
hibited the sale or manufacture of canned heat or other
compounds from which alcohol could be extracted for
beverage purposes. Indiana made it illegal for jewelers
to display pocket flasks or cocktail shakers in the win
dows of their shops.

**State Cooperation in the Enforcement of National Prohibition
Laws, United States Treasury Department, 1930, p. 26.
p. 29.

The Deadlock of 1926 203

Nevertheless, despite the formidable character of the
state legislation which had been enacted by the end of
1926, there was an unmistakable hiatus in many in
stances between the law and its enforcement. It was one
thing to adopt a drastic law and another thing to pro
vide enough enforcement agents to detect violations of "
this law, enough police to arrest the violators, enough
courts to try prohibition cases with reasonable prompt
ness and enough jails to hold the guilty.

A case in point may be cited from the experience of
New York. In April, 1921, the legislature of that state
adopted the Mullan-Gage Law, closely patterned on the
Volstead Act and carrying heavy penalties for viola
tions. Simultaneously, however, the legislature failed
to make any special appropriation to enforce this new
state code and refused, meantime, to adopt a bill
which would have dispensed with the right to trial by
jury. 61

The result of this action might have been anticipated
by 1926, if not in 1921. The Mullan-Gage Law had been
signed by the Governor on April 5, 1921. Within ten
days the assistant district attorney in charge of prosecu
tions under the law in New York City reported that ten
times as many cases had already accumulated as the
existing machinery of state courts could handle and de
clared that he had found it difficult to obtain satisfac
tory juries. 62

From this point forward, the problem of congestion
in the courts and of unsatisfactory juries increased
rather than diminished. In the third week following the
enactment of the law, the same Governor who had
signed it announced that he "might convene an extra-
^New York Times, April 15, 1921.
id., April 16, 1921.

204 The Dry Decade

ordinary term of the State Supreme Court and assign
justices to help clear up the calendars/ 563 At the same
time, the district attorney's office in New York City
called for volunteers to serve without pay in helping it
handle an unprecedented flood of business; 64 the Police
Commissioner asked for an additional $2,000,000 to
enable him to increase his force; 65 the Department of
Plants and Structures reported that the police had al
ready seized enough samples of liquor to occupy the at
tention of the city chemist for a year. 66

Approximately on this pattern the experiment con
tinued for two years. What it might have accomplished
if the legislature had been ready to create an army of
state police and willing to abolish trials by jury there is
no way of telling. What it actually accomplished, in the
existing circumstances, may be measured by noting its
results in New York County: an accurate test, since the
whole purpose of a state law was to enforce prohibition
not in the rural communities where enforcement was no
problem, but in urban centers where enforcement had
been lax.

Basing its figures on court records, the Committee
on Criminal Courts, Laws and Procedure of the Bar
Association of New York reported that a total of 6,902
cases had been presented to the Grand Jury under the
Mullan-Gage Law while it was in force; that 6,074 of
these cases, or 88 per cent, had been dismissed; that 496
cases, or 7.2 per cent, had been settled by pleas of guilty ;

^New York Times, April 22, 1921.
^Ibid., April 18, 1921.
Ibid. y May 10, 1921.
id., April 19, 1921.

The Deadlock of 1926 205

and that only 20 cases, or three-tenths of one per cent,
had resulted in conviction and a jail sentence following
a trial by jury. 67

If the Mullan-Gage Law differed from most state leg
islation in the fact that its span of life was brief, it had
one point in common with the average state enforce
ment code: it had little authority behind it by way of an
appropriation from the public treasury.

It is true, of course, that the enactment of a state
law opened the state courts to prohibition cases and in
theory relieved the federal courts of carrying the whole
burden of enforcement. There was little profit, however,
in opening the state courts if they were promptly to be
closed again by a glut of more cases than they could
handle, precisely in those districts in which the law was
disobeyed most frequently. If the states really wished
to enforce prohibition where it was disobeyed, it was
plainly important not merely to make laws, but to create
courts in which to punish violations of these laws and to
supplement the casual efforts of municipal police and
county law officials with state machinery of enforce
ment. Such efforts, of course, cost money.

How much money the states expended to enforce
their own state codes in the first three years of prohibi
tion it is impossible to say, for the reason that it was too
small a sum to be itemized separately in the financial
data of the Census Bureau. In 1923, however, a total of
$548,629 was spent by the states specifically for the

67 New York Times, January 29, 1928.

206 The Dry Decade

purpose of enforcing prohibition. 68 By 1927 this sum
had increased to 689,855. 69

Here, in the eighth year of prohibition, was something
less than three quarters of a million dollars for enforce
ment. It was contributed by eighteen states. Thirty
states, twenty-eight of which had state enforcement
acts, contributed nothing. Three States Utah, Nevada,
and Missouri contributed less than $1,000, Utah's con
tribution being $160* Seven states contributed between
$1,000 and $25,000. The largest contribution was
146,577 in the case of Ohio. The grand total contrib
uted by all of the states was a little less than one
twenty-fifth of one per cent of their total expenditures
for all purposes. It was approximately half of what they
spent on regulating the sale of oil and gas and approxi
mately one fourth of what they spent on maintenance of
their monuments and parks.

These figures are revealing. They suggest one reason
why officials of the federal government had so frequently
complained, from the start of this experiment, of a lack
of effective assistance by the states; why the first pro
hibition commissioner had declared at the end of his
first year in office that some of the states seemed willing
to let the federal government struggle along without
their help; 70 why the Department of Justice had insisted
that "except in one or two states" the state courts were
not carrying their proper share of "the prohibition

^Financial Statistics of the States, 1923, Bureau of the Census,
pp. 9091.

59 This figure and the figures cited in the following paragraph
are quoted from Financial Statistics of the States, IQ2J 9 Bu
reau of the Census, pp. 80-81.

70 New York Times* April 27, 1921.

The Deadlock of 1926 207

burden"; 71 why President Harding had declared in 1923 :
"A good deal of testimony comes to Washington that
some states are disposed to abdicate their own police
authority in this matter and to turn over the burden of
enforcement to the federal authorities." Presumably
this meant the wet states. As for the dry states : " It is
a singular fact that some states which successfully en
forced their own prohibition statutes before the Eight
eenth Amendment was adopted have latterly gone
backward in this regard." 72

Three years after one President lamented the unwil
lingness of the states to lend the federal government
more effective support, another President issued an exe
cutive order proposing to appoint state officials as agents
of the federal government.

If this proposal ended nowhere, at least it suggested
the existence of a problem in cooperation which had not
been solved.

With one or two exceptions, the state legislatures had
given the friends of prohibition enough laws, and enough
drastic laws, to satisfy them to their hearts' content. At
the same time they had not bothered the opponents of
prohibition either with strict enforcement or high taxes.

For communities within the states, as for states within
the nation, there remained a large degree of local option.

71 Chapter VI, supra.

72 Address at Denver, June 25, 1923.

CHAPTER IX
The Appearance of Organized Opposition

of the law marked time in 1926 and
1927. Congress stood pat. A three-to-one majority was
not large enough to ratify the Andrews program. The
states appropriated no new funds to vitalize their ample
legislation. The controversy over "poison alcohol" and
under-cover work had unleashed a vast amount of argu
ment but failed to arm the government with any power
which it did not have before. In all its major characteris
tics the pattern of enforcement had not greatly changed
since 1920. If any fundamental change had taken place
in this interval of seven years it was not in the method
employed by Congress to carry the experiment with na
tional prohibition through to a successful end, but in the
character of the opposition to the law.

To understand the extent and the significance of this
change it is necessary to recall the auspices under which
opposition to the Eighteenth Amendment had originally
appeared. In 1917 it was the brewers and distillers who
invoked the argument of home rule and championed the
doctrine of states' rights. Organized labor filed its pro
test against this legislation in a stormy meeting at the
Capitol. 1 Various associations of hotel keepers employed
counsel to protect their interests. Here and there a real
Chapter II, supra.

208

The Appearance of Organized Opposition 209

estate board adopted resolutions. But in the end it was
the brewers and distillers who led the opposition to the
law and organized its efforts.

It was the Distillers' Association of America which
carried the fight to the state legislatures in an effort
to prevent ratification, organized emergency committees
and attempted unsuccessfully to force a referendum
vote in fourteen states. 2 It was the United States Brew
ers' Association, and not an association interested in the
theory of the Constitution or the bill of rights, which
briefed the case against the Volstead Act and submitted
its brief to the President with a petition for his veto. 3
It was the firm of Feigenspan, New Jersey brewers,
which employed Elihu Root and William D. Guthrie to
carry a last desperate appeal to the Supreme Court of
the United States. 4

Throughout the whole controversy over national pro
hibition from the time Senator Sheppard's resolution for
a constitutional amendment first appeared in Congress
to the June day in 1920 when the Supreme Court upheld
the Volstead Act, the opposition to this legislation had
no funds, no organization and no real leadership except
in so far as these elements were supplied by the liquor in
terests of the country.

With the exception of union labor there were no im
portant organizations arrayed in opposition to this pro
gram. There were no independent organizations in the
field whose motives were disinterested and whose con
stituents were drawn from the rank and file of ordinary
citizens.

In the matter of making public sentiment either for or

2 New York Times, January 30, 1919.

Associated Press dispatch, Washington, October 15, 1919.

4 New York Times> March 28, 1920.

210 The Dry Decade

against the law, of arguing the case before Congress and
of persuading members of the state legislatures on which
side safety lay, the struggle over the Eighteenth Amend
ment was a straight-out struggle between the liquor
interests on one side and the allied prohibition organiza
tions on the other.

It was more or less inevitable that this should be the
case. Presumably if the conflict had come over the ques
tion of prohibiting the manufacture, sale and transporta
tion of tobacco rather than of alcohol, the character of
the opposition would not have varied greatly, though it
might have come most vigorously from other sections
of the country.

The plantation owners of the South would have op
posed this legislation. The various associations repre
senting manufacturers, wholesalers, and retailers would
have organized lobbies, petitioned the state legislatures,
and battled to protect their interests. The individual
smoker might have grumbled. He might have insisted
that it was no business of a federal Congress to regulate
standards of conduct within the states. With sufficient
provocation he might have volunteered to march in a
protest demonstration, provided the weather happened
to be right. He might have made it a point to vote
against his Congressman, if he made it a point to vote at
all. But he would scarcely have been found, at the time
this controversy reached its height, enrolled as an ac
tive member of a protective smokers' league, tirelessly
working to convert his neighbor to his point of view, and
paying faithfully at the end of every month dues which
would have helped finance an endless flow of ardent and
devoted propaganda.

The Appearance of Organized Opposition 211

It is probably inherent in the. nature of a reform
movement that those who favor the reform should be
more alert and better organized than those who are op
posed to it. The reformer sees in the existing situation an
immediate menace to morals or to public safety which
spurs him into action. The opponent of the reform is
usually self-satisfied. He may admit that in certain re
spects an existing situation needs improvement. He is
usually willing to let someone else improve it. No men
ace appears in his case until the efforts of the reformer
have become so formidable as to threaten him with a law
of which he disapproves. It is apparently a rare case in
which he has foresight enough to anticipate this danger
until it overtakes him.

Unquestionably it was a factor of some importance in
the adoption of the Eighteenth Amendment that those
people who disliked and distrusted prohibition as a
method had never been willing or able to organize their
opposition. Even in the South and West there had al
ways been material with which to create more than a
mere shadow of effective opposition. The South and
West had not been overwhelmingly in favor of prohibi
tion even on a basis of state action and even in the modi
fied form in which it was frequently proposed. On the
contrary, the division of opinion had been fairly close.
In the eleven states in the South and West which
adopted prohibition by popular referendum in the three
years before the war, 44 per cent of the vote had been
cast against this legislation. 5

This was a respectable minority. Yet the people who

polled so large a percentage of the vote were wholly

unrepresented by any organization which could state

their point of view persuasively. They had nothing re-

6 Cf. Appendix A.

212 The Dry Decade

motely comparable with the Anti-Saloon League and its
successful method of straddling both parties in an effort
to send dry candidates to the state capitals and to Wash
ington. They had no organizations continuing from one
year to another which could meet the arguments of the
prohibition organizations with counter-arguments. They
had only their individual opposition to the law, what
money the brewers poured into local campaigns with a
generosity which was frequently more damaging than
useful and what leadership they could derive from the
entirely self-interested enthusiasm of an industry fight
ing for its own existence.

It is idle even to guess whether the Eighteenth
Amendment would have been adopted in 1919 if the
people opposed to it on principle had set out systematic
ally to organize their opposition twenty years before it
reached a vote in Congress. The question was not tested.
The opponents of national prohibition never fought their
battle. They chose to lose it by default.

It was one of the unmistakable results of seven years
of national prohibition that a number of organizations
independent of the once almighty brewers and at least
theoretically capable of serving as focal points around
which effective opposition to the law could cluster came
into existence in the years from 1920 to 1927.

In 1923 the Moderation League was incorporated in
New York for the purpose of creating sentiment in favor
of modifying the Volstead Act by an amendment which
would give "a reasonable and workable definition of
intoxicating liquors/' 6

Associated Press dispatch, Albany, September I, 1923.

The Appearance of Organized Opposition 213

In 1926 the Association Against the Prohibition
Amendment, originally incorporated under the laws of
the District of Columbia on December 31, 1920, joined
hands with the Moderation League, the American Fed
eration of Labor, and the Constitutional Liberty League
of Massachusetts in presenting evidence to Congress in
an attempt to prove that the law had not been and
could not be successfully enforced. Testifying before a
subcommittee of the Senate, the chairman of this asso
ciation stated that by 1926 his organization had enrolled
720,000 members. 7

In 1927, "tired of taking a halfway position," the
Women^s ^Committee for ^M^ification ~ of the^ ToT-
stead Act changed its name tQjthe^JWomen's Com
mittee for_Rjepeal^-theEighteenth Amendment and
addpted as its slogan "the restoration of the bill of
rights/ 58 ~

In this same year a movement for repeal was initiated
among the bar associations of the country by a group
of lawyers in New York City who incorporated them
selves as the Voluntary Committee of Lawyers and who
based their opposition to national prohibition essentially
on legal grounds: "The Eighteenth Amendment is in
consistent with the spirit and purpose of the Constitu
tion of the United States and in derogation of the liber
ties of the citizens and rights of the states as guaranteed
by the first ten amendments thereto." 9 x

The movement initiated by these lawyers made sub
stantial progress in the larger cities. The Law Associa
tion of Philadelphia had already declared itself opposed

^Hearings of a Subcommittee of the Senate Committee on ike
Judiciary y 6gth Congress, 1st Session, p. 44.
8 New York Times, November 3, 1927.
9 IKd. 9 December n, 1927.

214 The Dry Decade

to national prohibition. 10 In 1928 the Bar Association
of New York adopted a resolution asserting it to be "the
sense of this association that the Eighteenth Amend
ment, the Volstead Act and all orders and regulations
for the enforcement thereof should be repealed and the
subject of prohibition be remitted to the sole regulation
of the several states/' 11 Within two years similar action
was taken by the Boston Bar Association, the New
Jersey State Bar Association, the Detroit Bar Associa
tion, the St. Louis Bar Association, the San Francisco
Bar Association, and the Bar Association of Portland,
Oregon. In 1930 the American Bar Association itself ap
proved a proposal for repeal, by a referendum vote of
13.779 to 6,34o. 12

If proof were needed that a new type of opposition had
come into the field, this protest by the bar associations
furnishes it. For the bar associations had remained
aloof from this whole controversy in 1917 and 1918.
None of these organizations which now adopted reso
lutions had been sufficiently concerned with the question
of national prohibition to oppose it on constitutional
grounds at the time of its adoption.

To the militant prohibition organizations which had
long been accustomed to facing the brewers and distil
lers as their only adversaries, this change in the charac
ter of the opposition to the Eighteenth Amendment was
novel and on the whole unwelcome. The brewers and
distillers made ideal opponents for the champions of pro-

10 New York Times* March 9, 1927.
n lbid., February 15, 1928.
12 Ibid., November 19, 1930.

The Appearance of Organized Opposition 215

hibition. They could be described, and in all fairness, as
interested parties to this dispute, primarily concerned
with the preservation of their own profits. They could
be denounced as bitter-end opponents of any refor
mation of the saloon and as adversaries desperate
enough in their choice of weapons to resort to the use
of a blacklist. 13 Inevitably there was more satisfaction in
sinking a righteous sword into the bowels of such op
position than in arguing the merits of prohibition with
miscellaneous committees of lawyers, business men, and
bankers.

In these circumstances it was tempting for the friends
of prohibition to believe that the new organizations
which had appeared in opposition to the law were merely
a screen for the same old opposition which they had
always faced : at best, the work of well-meaning people
who had been duped by the propaganda of the liquor
interests; at worst, pretentious organizations which
claimed to be disinterested but actually depended for
support on the brewers or their allies.

Nevertheless, though the friends of prohibition clung
to the theory that there had been no change, they were
in reality dealing with a different situation. In 1917 the
chief spokesman of the opposition was the president of
the United States Brewers' Association* In 1927 leader
ship of the opposition had passed to the president of the
Pennsylvania Railroad or to the chairman of the board
of the General Motors Corporation or to the president
of the Western Union Telegraph Company, all of which
organizations had once been on the brewers' blacklist. 14

In 1917 it was the Distillers 5 Association of America,

13 Chapter I, supra.

"Testimony of W. W. Atterbury, Hearings of the House Judi
ciary Committee, February 26, 1930.

216 The Dry Decade

eager to protect its vested interests in the liquor traffic,
which sought to convince the state legislatures that the
Eighteenth Amendment could not be successfully en
forced. In 1927 it was a committee of members of the
New York Bar Association which insisted that the
Eighteenth Amendment had "proven a source of con
fusion and hindrance in the interpretation and adminis
tration of the entire body of the law." 15

There was a fundamental difference here. Whether
or not the friends of prohibition were prepared to recog
nize the fact, there were people who could differ with
them honestly over the theory of the Eighteenth Amend
ment and over the results which it had achieved in prac
tice. These people may have been either wise or unwise.
They may have failed to see as far into the future as
the friends of prohibition, or they may have seen still
further. In either case their opposition to the law was
based in many instances on an honest and deeply rooted
conviction that this experiment had been disastrous;
that it had attempted to solve an age-old problem by
ignoring the fundamental factor of variations in local
sentiment, and that it had broken down barriers which
had hitherto protected individual Americans against a
centralized authority in Washington.

There was one important influence in the develop
ment of opposition to the law which the friends of this
experiment bitterly resented. This influence was the
prestige of the daily press in the larger cities of the coun
try. "Day by day," said a witness appearing before a
committee of Congress in 1930, "the great metropolitan
15 New York Times, December n, 1927.

The Appearance of Organized Opposition 217

newspapers of the country are dropping poison in the
breakfast cups of millions of people/' 16

With this < :riticism many friends of the law had long
agreed. A committee of the quadrennial conference of
the Methocfist Episcopal Church in 1927 denounced
"the falsehoods of that part of the daily press which
continues to lend comfort to the enemies of prohibition "
and urged a boycott of such newspapers in advertising
and subscriptions. 17 The Board of Temperance, Pro
hibition and Public Morals of the same church insisted
that "New York is bombarding the West with anti-
prohibition propaganda, which in practice proves to be
an incitement to violation of the law." 18 The general
superintendent of the Anti-Saloon League regretted
"the power of the press to magnify every failure, misfor
tune or mistake in connection with prohibition out of all
proportion to its proper relation toward a great na
tional reform/' 19 Representative Fort of New Jersey
declared that "the agitation against prohibition has
equalled in intensity any agitation in our history; never
have our great and powerful newspapers thrown the
whole weight of their influence practically unanimously
on the same side of a question before/' 20

Two theories were suggested by the friends of prohibi
tion to explain this bias which they detected in the met
ropolitan newspapers. According to one theory, the press
of the larger cities had been purchased outright or eff ec-

lB Hearings of the House Committee on the Judiciary, yist Con
gress, 2d Session, Serial 5, pt. 2, p. 648.

17 Associated Press dispatch, Kansas City, May 14, 1927.

18 New York Times, October 4, 1925.

19 New York Herald Tribune, June 10, 1929.

^Congressional Record, yist Congress, 2nd Session, pp. 2789-
2792.

218 The Dry Decade

tively subsidized by the brewers and distillers. Accord*
ing to the second theory, the press in the; larger cities
merely catered to the known prejudice of it s clientele by
publishing material which would bring the law into dis
repute. In either case, the essential criticism brought
against the press was that it persisted in giving a vast
amount of space, headlines, and emphasis J:o every
problem which the law encountered, large CT small,
though prohibition had now been written into th * Con
stitution.

On the whole, it was probably a fair criticism. It was
a criticism, however, which could have been applied
with equal fairness to many newspapers in small towns
and villages in which the law itself was popular, pro
vided these journals were in touch by telegraph with the
world around them. Prohibition had brought a number
of new and exciting elements into American life. It had
either introduced or provided with a new field of activity
the bootlegger, the hijacker, the rum-runner, the speak
easy, the illicit still, the government drive, and the po
lice department round-up. All of these elements were
essentially the stuff of which news is made. A press
whose business is to sell papers took to them as naturally
and as willingly as it would have reported any other
news which had color, drama, and adventure.

No doubt a great majority of the newspapers pub
lished in the larger cities were frankly opposed to pro
hibition and more opposed to it in 1927 than in I92O. 21
In this attitude they shared the opinion of many people
in their communities that prohibition had been a failure
in the cities, however successfully it may have worked in
rural sections of the country. No doubt it would be easy

. a poll of 1 10 newspapers by the New York Her aid Tribune,
April 7, 1930.

The Appearance of Organized Opposition 219

to cite many cases in which these newspapers had over
emphasized news which was unfavorable to prohibition.
It would also be easy to cite many cases in which they
had overemphasized news which was favorable to pro
hibition, not because they shared this point of view, but
because they were good enough merchants to recognize
that a vast public interest had been aroused in prohibi
tion and that anything which dealt in an interesting fash
ion with this question, from whatever angle, was good

news.

The record of the New York Times Is a convenient
record to examine because that newspaper publishes an
index of its news. In 1925, the same year in which the
Methodist Board of Temperance declared that "New
York is bombarding the West with anti-prohibition
propaganda/' the New York Times published eighteen
statements from the Methodist Board of Temperance in
behalf of prohibition. It published sixty-nine items of
news concerning the activities of the Anti-Saloon League,
its pleas for strict enforcement, its tributes to the
success of prohibition, and its replies to critics of the law.
It published eighty-two statements from officials of the
federal government, outlining optimistic plans to make
enforcement a reality and summoning the public to obey
the law.

It was the Times 9 and not some journal in the Middle
West, pledged to the cause of prohibition, that served as
the medium through which Mr. Wheeler's syndicated
articles were broadcast to the country. 22 It was the
Times which published Mrs. Mabel Walker Wille-
brandt's reminiscences of her career in office 23 and the
Times which featured in no less than forty-two install-

York Times, March 28 to April 4, 1926.
, August 5 to 25, 1929.

22O The Dry Decade

ments the long narrative in which Major Roy A. Haynes
summed up a record of achievement under the Eight
eenth Amendment which was "nothing short of
marvelous/' 24

In the files of the metropolitan press there can be
found glowing reports of the progress of prohibition as
well as sensational chapters in its breakdown. If there
is less material of the first type than the second it was
at least in part because the communiques of the friends
of prohibition failed in the long run to keep pace with an
endless series of exciting violations.

Whatever the net result of the vast literature of pro
hibition published by the daily press (the New York
Times printed 16,231 items of prohibition news between
1920 and 1927), unquestionably a large number of pow
erful newspapers in many widely scattered cities had
taken an editorial position in direct opposition to the
law. To critics of the Eighteenth Amendment this
seemed entirely reasonable and as definitely a sign of the
times as the appearance of opposition among the bar
associations and the women's clubs. To friends of the
Eighteenth Amendment these newspapers had chosen to
flirt with treason and to adopt an editorial position
wholly unrepresentative of the real convictions of the
American people on the question of national prohibition.

What the real convictions of the American people
were, it is impossible, of course, to say. There had been
no referendum on the adoption of the Eighteenth
Amendment; there had been no referendum after its
adoption; there was no provision in the Constitution
York Times, July 15 to August 26, 1923.

The Appearance of Organized Opposition 221

for a referendum and no likelihood that if such a pro
vision had existed Congress would have chosen to invoke
it. Such estimates of American opinion as were freely
offered during the years from 1920 to 1928 were based
not on evidence as precise as the data of the Census
Bureau, but on deductions drawn from three incon
clusive sets of figures.

j. Official Polls

Down to the end of 1928, nineteen referendums on
some phase of prohibition had been held under the aus
pices of various states. Nine of these referendums were
on questions of modifying the Volstead Act through
some state device or of appealing to Congress to modify
it or of appealing to Congress to repeal the Eighteenth
Amendment outright. Two of these nine referendums
were won by the drys: Ohio in 1922 and Colorado in
1926. The other seven were won by the wets: Massa
chusetts in 1920; Illinois in 1922; Illinois, Wisconsin,
Nevada, and New York in 1926; and Massachusetts in
I928. 25

To the wets this record seemed to carry convincing
proof of the unpopularity of the law, especially in large
industrial states like New York, which had voted in
favor of modification by a majority as large as three to
one. To the drys these figures were unimportant. Refer
endums of this sort, they insisted, were essentially a
waste of time, since it was impossible for an individual
state to escape from the tight grasp of the Eighteenth
Amendment through any modification program of its
own and futile for it to petition Congress to help it in

^A tabulation of state votes on prohibition questions will be
found in Appendix I.

222 The Dry Decade

this effort. The dry theory of these wet victories was sim
ply that the wets voted and the drys did not, choosing
rather to boycott such referendums as empty gesture ,.

No doubt this is what happened in many instances. In
New York, for example, a deliberate boycott by the drys
is the only reasonable explanation of the fact that
543,166 fewer votes were cast in the prohibition referen
dum in 1926 than were cast in the election of a Governor.
In this case, however, sentiment in favor of a change
was strong enough to make the boycott a fact of minor
importance. If all of these 543,166 votes had been dry
votes and if they had been cast solidly against the pro
posal for modification, this proposal would still have
carried the state by a vote of 1,763,07 to i,i4i,6so. 26

Meantime, there were certain cases in which a boycott
was impossible if the friends of prohibition wished to
protect a state enforcement law against repeal. However
faint the voice of the states in Washington, they had
undisputed power to decide this question for them
selves. Ten referendums in five states were held in these
same years on the question of enacting or repealing
state enforcement codes. On this issue, armed with the
persuasive argument that as long as the Eighteenth
Amendment remained in the Constitution it was the
duty of the states to help enforce it, the friends of pro
hibition won a very considerable measure of success. If
they lost California once (in 1920), Massachusetts once
(in 1922) and Montana twice (in 1926 and 1928), they
won Massachusetts once (in 1924), North Dakota once
(in 1928), Missouri twice (in 1920 and 1926), and Cali
fornia twice (in 1922 and 1926) . 27

^Cf. Appendix L

2 *The popular vote in each of these referendums will be found
in Appendix I.

The Appearance of Organized Opposition 223

Of ten contests over the question of state enforce
ment codes the drys had won six and lost four by the
en<?. of 1928. Of nine contests over the question of at
tempting to modify the law they had won two and lost
seven. This was as much as could be claimed for either
side as the result of what modest efforts had been made
by official agencies of the states to measure the drift of
local sentiment.

2. Unofficial Polls
f

Meantime, a large number of wholly unofficial polls
had been taken in these years. This was not surprising.
Prohibition remained a controversial question before the
American people. There was a natural interest in dis
covering, if possible, what the American people thought
about it. The forty-eight states having held only nine
teen referendums in eight years, an average of one
referendum for each state every twenty years, it was
inevitable that private agencies should have been
tempted to explore the question somewhat further.

In tfceory, these unofficial polls taken by various news
papers, magazines, professional societies, trade unions
and other agencies for the expression of opinion had two
clear advantages and one clear disadvantage. The ad
vantages lay in the fact that these polls were the only
polls to cross state lines and the further fact that they
offered several alternatives for a plain expression of
opinion, instead of a choice at the polls between yes and
no on some proposal which the individual voter may
have liked but may have thought illegal. The obvious
disadvantage lay in the fact that there was no certain
way of telling whether the results of any poll accurately
measured a cross-section of opinion or only a cross-
section of such opinion as cared to mail a postcard.

224 The Dry Decade

In point of numbers and of territory covered, the two
most important polls taken by any private agency down
to the end of 1928 were the first Literary Digest poll in
1922 and -a poll taken by the Newspaper Enterprise
Association in 1926.

Employing the same method which it used in a later
poll in 1930, the Literary Digest distributed ballots in
1922 among the forty-eight states, asking for an ex
pression of opinion (i) in favor of the existing law, or
(2) in favor of its modification to permit light wines
and beer, or (3) in favor of complete repeal. In reply to
this request 922,382 ballots were received, of which 38.6
per cent favored the law as it stood, 40.8 per cent favored
modification, and 20.6 per cent repeal. 28 The satisfied
vote was 38.6 per cent of the total; the dissatisfied vote,
61.4 per cent.

The results of the poll taken by the Newspaper En
terprise Association in 1926 were more spectacular. In
this case 326 newspapers in forty-seven states partici
pated in a poll of 1,747,630 people. Of the total vote
cast, 18.9 per cent favored the existing law, 49.8 per cent
favored modification, and 31.3 per cent favored repeal. 29
The satisfied vote in this case was 18.9 per cent of the
total; the dissatisfied vote, 81.1 per cent.

As might have been anticipated, these were impres
sive figures to the opponents of prohibition, gathered
by methods which they thought eminently fair. The
Literary Digest had made an effort to distribute its bal
lots accurately between urban and rural districts in
accordance with their voting strength. The Newspaper
Enterprise Association had invited and obtained the

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, ist Session, pp. 420, 439.

The Appearance of Organized Opposition 225

cooperation not only of newspapers in the larger cities
but also of many such newspapers in smaller towns as
the lola (Kans.) Register, the Danville (Va.) Bee, the
Dowagiac (Mich.) Daily News, the Hickory (N. C.)
Record, and the Taylorsville (III.) Breeze. To the wets
the net result was a reliable index of opinion and persua
sive proof of widespread opposition to the law which
had gained ground impressively between 1922 and 1926.

As might also have been anticipated, these same fig
ures failed to carry conviction to the friends of prohibi
tion. There was no way of knowing, the prohibition
leaders insisted, how fairly these ballots had been
counted, how many drys had failed to vote, and how
many wets had voted twice. In the opinion of the Anti-
Saloon League such polls as these were not only wholly
unreliable and entirely misleading but "in effect,
whether so intended or not, part of the wet agitation and
propaganda/' 30

There is no way in which to test the validity of these
rival theories to the satisfaction of both parties. Com
parisons are sometimes made between the vote cast In
the Literary Digest poll in 1922, in California or in Massa
chusetts, and the vote cast in these same states in the
same year on the enactment of state enforcement laws.
Such comparisons are unreal, since the two polls raised
different issues. A more accurate comparison could be
made between an unofficial poll and an official poll in
which the same question was placed before the voter: for
example, the question of modifying the Volstead Act to
permit light wines and beer. All such polls, however,
while convincing to the wets, were unsatisfactory to the
drys as a test of public sentiment, whether official or
unofficial.

30 New York Times, March 14, 1926.

226 The Dry Decade

5, Elections to Congress

There remained one other test of sentiment and to the
friends of prohibition it was the only right one. "The
only legal referendum on federal questions/' insisted
the Anti-Saloon League, "is the election of federal of
ficers who vote on such issues/' 31 Straw ballots made no
legislation. The one certain test of public opinion was
the election of a federal Congress which actually had
power to make laws or to unmake them.

In this respect the drift of opinion seemed to the drys
to be unmistakably in their favor. A dry Congress had
adopted the Eighteenth Amendment and written the
Volstead Act. Subsequently, said Mr. Wheeler in 1926,
"each year the Congress that has been elected has been
dryer than its predecessor/' 32

On this point, however, Mr. Wheeler's figures did not
entirely bear him out. His analysis of the results of the
1926 elections showed that "71 per cent of the Demo
cratic members and 72 per cent of the Republican mem
bers of the House, with 70 per cent of the Democratic
members and 76 per cent of the Republican members of
the Senate, have dry voting records or have made dry
pronouncements." 33

In the original test of strength on the adoption of
the Eighteenth Amendment in 1917 prohibition had the
support of 69 per cent of the Democratic members and
69 per cent of the Republican members of the House;
75 per cent of the Democratic members and 78 per cent

31 New York Times, March 13, 1926.

^Hearings of a Subcommittee of the Senate Judiciary Committee,
6gth Congress, ist Session, p. 868.
York Times y November 6, 1926.

The Appearance of Organized Opposition 227

of the Republican members of the Senate. On the basis
of Mr. Wheeler's figures in 1926 the friends of prohibi
tion had gained some ground in the House, but lost
more in the Senate.

Nevertheless, the dry majority was comfortably large.
There was no question of its ample power in 1926 to
block any proposal looking toward modification of the
law or its repeal. To this extent the friends of prohibi
tion had command of the situation. The opponents of
prohibition were faced by the task of explaining the
continued presence of a dry majority in Congress if
public opinion itself, as they believed, and as they
sought to prove from the results of many official and
unofficial referendums, was so predominantly in favor of
a change.

One theory on which the opponents of the law relied,
to explain their lack of success in Congress, was the
theory that Congress itself had denied wet districts of
the country their proper share of representation through
its failure to reapportion seats in the House of Repre
sentatives following the 1920 census. It is not a particu
larly impressive theory, though there can be no question
that Congress had chosen cheerfully to nullify a basic
article of the Constitution. Reapportionment would
have changed no seats in the Senate and only a handful
in the House.

A more persuasive argument, though one less often
cited, lay in the fact that representation in Congress
was so apportioned within the states that rural districts
frequently enjoyed a superiority out of proportion to
their numbers. In Wisconsin, for example, the legislative
districts containing the two largest cities in the state,
Milwaukee and Racine, had one representative in Con
gress in 1926 for every 269,000 people; the other dis-

228 The Dry Decade

tricts, one representative for every 228,000 people. 34
In New York, the districts containing New York City
had one representative for every 249,000 people; the
rest of the state one for every 232,000 people. 35 In
Illinois, Cook County had one representative for every
312,000 people; the rest of the state one for every
223,000 people. 36 It took three people in Cook County
to equal two outside.

Nevertheless, with due allowance for all this, the fact
remains that the opponents of prohibition had never at
tempted to offset this disadvantage by organizing an
effective opposition. The first signs of such opposition
began to appear only after 1923. The strategy of the
average Congressman in doubtful territory, in these cir
cumstances, was to play the situation both ways as
effectively as possible. By making what Mr. Wheeler
described as "dry pronouncements" he could win the
valuable support of the Anti-Saloon League and its
allies. By keeping the cost of enforcement so low that it
would neither add unwelcome taxes nor shut off the
sources of illicit liquor he could hope to stave off an
organized political revolt on the part of the opponents
of the law.

The net result could accurately be described as a stale
mate. The friends of prohibition had elected a Congress
which would make dry pronouncements till the record
bulged. The enemies of prohibition had impressed this
Congress with the desirability of making no real effort
to enforce the law.

It was a Congress with a three-to-one majority for
prohibition that knifed the Andrews plan.

^Congressional Directory, January, 1926, pp. 127-130.
**Ibid.> pp. 70-83.
pp. 22-27,

The Appearance of Organized Opposition 229

The sharpest change in the membership of Congress
since 1917, as analyzed by Mr. Wheeler nine years later,
had come on the Democratic side of the Senate. This
was the result of the election of wet Democrats in sev
eral of the large industrial states. A powerful faction of
the party had its stronghold in the urban sections of the
North and East. It was the increasing strength of this
faction and its insistence on the necessity of a change,
coupled with the reluctance of another faction of the
party in the South and West to recognize the desirabil
ity of a change, which resulted in the curious decision
of the Democratic party in 1928 to nominate a wet can
didate for President on a platform favoring strict en
forcement.

There was an unmistakable confusion of purposes here
which time did not remove. On the contrary, not only
did the confusion of purposes remain to the end: it
rapidly became the business of statesmen in both parties
to magnify it rather than to dissipate it.

On the Democratic side, it was obviously good tactics
to emphasize the importance of Governor Smith's theo
ries in the cities and simultaneously to minimize the
importance of his theories in the rural sections of the
country, where they were certain to be unpopular. On
the Republican side it was equally good tactics to re
verse this policy, to emphasize the importance of Gov
ernor Smith's theories in the rural sections and to be
little the importance of his theories in the cities.

Thus, while Senator Borah was traveling through the
smaller cities of the South and West, insisting that the
cause of national prohibition now faced a crisis and

230 The Dry Decade

warning the women voters of these towns that Governor
Smith "proposes to destroy the effort which you have
made to protect the American home/' 37 Mr. Charles
Evans Hughes was traveling through the larger cities of
the North and East, assuring Republican voters that
Governor Smith's program could not possibly involve a
serious threat to the cause of national prohibition and
dismissing the whole controversy as a mere "sham bat
tle/' 38 While Republican drys in the smaller towns of
Kansas were girding themselves to defend the Constitu
tion, Republican wets in Massachusetts were being told
by a Kansas Senator, Mr. Curtis, that the Constitution
was never more secure. "Don't let the Democrats fool
you. They cannot amend the Constitution as Congress
is constituted. . . . Don't grasp at the straw, because it
won't hold you/' 39

Meantime, it did not help clarify the issue to have
Mr. Hoover's views, on the other side of this controversy,
widely interpreted in dry sections of the country as un
compromisingly in favor of prohibition and widely in
terpreted in wet sections of the country as offering hope
of an immediate change.

Throughout the whole campaign an influential part
of the Republican press in the larger cities differed on
this point with the Republican press in the smaller
towns, insisted that Mr. Hoover had never been identi
fied with the prohibition movement, declared that his
attitude toward the whole question was essentially
open-minded, and argued that he would be in a far

37 Speech at Salisbury, N. C, New York Times, October 17,
1928.

38 Speeches at Buffalo, Worcester, Mass., and Brooklyn, New
York Times, October 27, October 31, and 'November i, 1928.
39 New York Times, September 7, 1928.

The Appearance of Organized Opposition 231

more favorable position than Governor Smith to
change the law, since he would not be handicapped
within his own party by the opposition of the Solid
South, One of the major triumphs of the campaign, for
this section of the Republican press, was the discovery
that Mr. Hoover had once expressed the opinion in a
statement made as Food Administrator that it was
"mighty difficult to get drunk on 2.75 per cent beer." 40
If Kansas now chose to read Mr. Hoover's campaign
speeches as a stirring repudiation of any and all plans
to modify the law, the New York Herald Tribune threw
its hat into the air over a statement of purposes which
"plainly left the door open for such reforms as a new
definition of what are intoxicating liquors." 41

However cautious historians a decade hence may be
in assessing the individual importance of the complex
political, social, and economic influences which played
a part in the 1928 campaign, there was no hesitancy
on the part of leaders on both sides of the prohibition
question to rush into print with ultimate conclusions
on the morning after the election.

To the Methodist Board of Temperance it seemed
clear that in Mr. Hoover's victory the great referendum
on prohibition had at last been held, 42 to the New York
Herald Tribune that an attempt to work out a construc
tive solution of the problems created by the Volstead
Act would now begin, 43 to Dr. Francis Scott McBride

40 Statement to the press, June 5, 1918.
41 New York Herald Tribunt, August 17, 1928.
42 New York Times, November 8, 1928.

York Herald Tribunt, November 8, 1928.

232 The Dry Decade

that "the result is a thorough vindication of the Anti-
Saloon League" 44 and to Dr. Nicholas Murray Butler
that 21,000,000 wet votes had been cast in the election. 45

With the slight advantage of a few years' perspective,
it is difficult to-day to guess what part prohibition
actually played in the campaign of 1928, to what degree
it was shadowed by such issues as prosperity, how
large an element of the Republican party in the larger
cities voted for Mr. Hoover believing his candidacy
carried promise of a change, and whether the Smith
campaign was a meteoric interruption or a logical de
velopment of the organized opposition which was now
beginning to appear.

Perhaps the one certain thing that can be said of
1928 is that a candidate who had described prohibition
as an ambitious experiment was now assured an op
portunity to see what he could make of it.
^New York Times, November 8, 1928.
id.y November 20, 1928.

CHAPTER X
The Hoover Program

A WENTY-FOUR hours before Herbert Hoover took
his oath of office on March 4, 1929, two incidents oc
curred which brought the story of enforcement up to
date. On March 3d Mr. Hoover's predecessor in the
White House signed the Jones Law. On the same day
Congress disposed of a bold proposal to add $256,000,000
to the budget of the Prohibition Bureau by deciding that
one per cent of this sum would be ample.

Debate over these two questions had precipitated a
series of sharp disputes in Congress during the four
months which elapsed between Mr. Hoover's election
and his inauguration. The Jones Law, warmly endorsed
by the leading prohibition organizations, added an
amendment to the Volstead Act increasing the maxi
mum penalties of that legislation to five years* imprison
ment or $10,000 fine, or both. This measure was brought
before the Senate on February I9th and adopted by a
vote of 65 to 1 8, after a clause had been inserted ex
pressing the Senate's intention that the courts "dis
criminate between casual or slight violations and
habitual sales of intoxicating liquors or attempts to com
mercialize violations of the law/' 1 With the Senate's
decision the House concurred, by a vote of 284 to 90.*

Congressional Record, yoth Congress, 2d Session, p. 3742.

2 Ibid., p. 4796.

234 The Dry Decade

Meantime, the dispute over the item of $256,000,000
had come before the Senate in a somewhat less orthodox
manner and raised questions which were not so easily
decided. During the debate on the Treasury appropria
tion bill Senator Bruce of Maryland offered an amend
ment which suddenly and unexpectedly multiplied the
appropriation of the Prohibition Bureau approximately
by twenty. Without debate, without a roll-call vote, and
apparently in a moment of sheer carelessness, the
amendment was accepted. 3

Immediately Congress was in an uproar. Senator
Bruce was a confessed opponent of the law. The drys at
once insisted that he had proposed this large increase
merely as a gesture and merely for the sake of embarras
sing the cause of prohibition. In reply, Senator Bruce
pointed to an official estimate made by the Commis
sioner of Prohibition, Dr. James M. Doran, whose
loyalty to the law no one questioned and whose en
thusiasm for prohibition had led the Methodist Board
of Temperance to describe him as an "outstanding,
sincere and trustworthy dry/' 4 had testified before a
committee of Congress one week before this time that it
would cost the federal government $300,000,000 a
year if it wished to undertake the responsibilities which
the states neglected and attempt to enforce the law
in every section of the country. 5 By adding $256,000,000
to the routine appropriation of $13,500,000 already
available for the Prohibition Bureau, Senator B race's
amendment still fell $30,000,000 short of Dr. Doran's
estimate.

^Congressional Record, 7oth Congress, 2d Session, p. 518.
4 New York Times, June 27, 1927.

testimony before the House Committee on Appropriations,
December 5, 1928.

The Hoover Program 235

By whatever accident this item of $256,000,000 had
found its way into a Senate bill, here at last was an
appropriation which took at face value the frequent
assertions of the prohibition organizations that the law
must be enforced regardless of the cost. None of the
prohibition organizations, however, now raised its
voice to welcome this appropriation or to defend it on
the ground that an experiment with strict enforcement
was fully worth the imposition of a quarter of a billion
dollars in new taxes. Nor did the item of $256,000,000
survive the Senate's sober second thought. Four days
after the Senate put this appropriation into the Treas
ury bill, the Senate took it out. 6

At this point, Senator Harris of Georgia proposed as
a substitute that the budget of the Prohibition Bureau
be increased to the extent of $25,000,000. This was a
much more modest plan. It made as little progress.
Secretary Mellon opposed it, on the ground that after
years of experience with smaller sums the Prohibition
Bureau would not know what to do with a sudden
appropriation of this size. 7 The drys in the House op
posed it, on the ground that it would embarrass the
Administration by increasing the cost of government
and leading the country to expect too much enforcement
all at once. With most of the leading drys arrayed in
opposition, the proposal was rejected in the House by
a vote of 240 to 141, 8

In the end, after many conferences, much bickering,
a long series of statements from the Treasury Depart
ment, and a long series of votes in Congress, a com
promise was reached on an increase of $1,719,654

^Congressional Record, 7oth Congress, 2d Session, p. 725,

^ew York Times, January 16, 1929.

^Congressional Record, yoth Congress, 2d Session, p. 2573.

236 The Dry Decade

instead of $25,000,000 or $256,00*3,000. This was more
according to precedent* The compromise was accepted, 9
The incident was closed.

On the same day that this appropriation was finally
ratified by the House of Representatives, Mr. Coolidge
signed the Jones Law.

Mr. Hoover thus entered office on the morning after a
particularly clear-cut demonstration of the willingness
of Congress to adopt more laws and its unwillingness to
create machinery to enforce them. This was a familiar
story. No two incidents could have summed up more ef
fectively the experience of nine years of prohibition.

There were other familiar factors in the situation
confronting the incoming President. The Prohibition
Bureau remained essentially the same inadequate
agency it had always been. In the five and a half years
since Mr. Coolidge succeeded Mr. Harding, to be suc
ceeded by Mr, Hoover, the Bureau had not changed
materially. In midsummer of 1923 it had had 3,413
employees, including its office force. In the spring of
1929 it now had 4,129 employees. 10

Meantime the problems of the Bureau had mounted
in the same familiar curve. Shortly before Mr. Hoover
entered office, the Department of Justice estimated that
smuggling from Canada into the United States had
increased by more than 75 per cent since I925. 11 The
production of industrial alcohol, with its inevitable op
portunities for diversion, had increased from 57,000,000

^Congressional Record, 7oth Congress, 2df Session, p, 5184.
10 New York Tim**, March 24, 1929.
ll lbid., December 4, 1928.

The Hoover Program 237

gallons in 1923 to 92,000,000 gallons in I928. 12 The
quantity of illicit liquor seized by Federal agents had
steadily increased from 14,346,649 gallons in 1923 to
32,474,233 in 1928, more than doubling in six years. 13
There was nothing essentially new in this. The repoa-
^ibilitjesjpf Jthe Prohibition Bureau had always expanded
at a more rapid pace than its equipment. The one new
factqrjn the situation, as Mr. Hoover entered office,
was Mr. Hoover's own proposal for an expert investiga
tion of the problem of enforcement.

As originally proposed in Mr. Hoover's acceptance
speech at Palo Alto, the plan for an investigation had
been limited specifically to prohibition. Reiterating his
earlier opinion that the Eighteenth Amendment was
"a great social and economic experiment, noble in mo
tive "anS far-reaching in purpose/' Mr* Hoover had
added this suggestion: "Common sense compels us to
realize that grave abuses have occurred abuses which
must ~be remedied. An organized, searching investiga
tion of fact and cause can alone determine" tfie wise
method of correcting them." -~^__

It was this comment which had enormously cheered
the Republican press in the larger cities during the
campaign and given it a text for its appeal to wet
Republicans to vote for Mr. Hoover on the ground
that his candidacy carried realistic hope of a change
in a system which they disliked. Mr. Hoover had said
that "grave abuses " had occurred. What were these
abuses, asked the Republican press in the larger cities,
if not the invasion of personal liberties, the breaking
down of local authority by a federal bureaucracy and an

^Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 26.
, p. 64.

238 The Dry Decade

increasing disrespect of law? Moreover, Mr. Hoover had
spoken not only of an organized, searching investigation
of "fact" but an organized, searching investigation of
"cause/ 5 If Mr. Hoover intended to go into the question
of "cause/ 5 how could he avoid exploring the whole
foundation of public opinion on which the Eighteenth
Amendment rested ?

Whatever the merit of this logic, the investigation
orginally proposed at Palo Alto had these two char
acteristics: it was to be directly concerned with prohi
bition, and it was to go into the question of cause as well
as fact. In this form the proposal remained throughout
the campaign and in this form its possible consequences
were debated*

During the four months following the election, how
ever, Mr, Hoover's plan for an investigation consider
ably expanded. The proposal had originally been aimed
at one law. It was now to be aimed at 3!! laws. "I pro
pose to appoint a national commission/ 5 said the in
coming President in his inaugural, "for a searching
investigation of the whole structure of our federal
system of jurisprudence, to include the method of
enforcement of the Eighteenth Amendment and the
causes of abuse under it. Its purpose will be to make
such recommendations for reorganization of the ad
ministration of federal laws and court procedure as
may be found desirable/'

Plainly this was a more ambitious program than Mr.
Hoover had originally proposed at Palo Alto. It was
also a less satisfactory program to many of those people
who had believed that Mr. Hoover's plan was intended
to deal specifically and not incidentally with the prob
lem of prohibition.

On one side, Senator Carter Glass complained, as a

The Hoover Program 239

friend of the Eighteenth Amendment, that prohibition
had now been buried in a mass of detail. It was Senator
Glass who had introduced the resolution which gave the
President's new commission official status and provided
it with funds. He had introduced his resolution, he
insisted, for the purpose of initiating an investigation
into the enforcement of prohibition. " In an unguarded
moment/' he now complained, " I allowed myself to be
persuaded to insert the parenthetical words, * together
with enforcement of other laws/ There was no purpose
on earth in making other laws the feature; this was a
mere incident to prohibition enforcement. But now
what has happened ? The parenthesis has been made the
main thesis. Prohibition enforcement has been sub
merged/' 14

Meantime, this new assignment given by the Presi
dent to his commission was as disappointing to many
opponents of the law as to many of its friends. Like
Senator Glass, these opponents of the law regretted that
prohibition was now to be considered merely as one
detail in an investigation which would explore "the
whole structure of our federal system of jurisprudence."
Unlike Senator Glass, they also regretted that the
President had instructed his commission to find methods
of enforcing laws rather than to consider the question of
whether laws were actually enforceable. For while Mr.
Hoover had again referred in his inaugural to the neces
sity of investigating "causes" as well as "facts/' he
now affirmed that the purpose of such an investigation
would be to discover ways of improving "the adminis
tration of federal laws and court procedure/'

To those opponents of prohibition whose hopes had
been aroused by Mr. Hoover's Palo Alto speech this
14 New York Times, June 20, 1929.

240 The Dry Decade

decision was unfortunate. It seemed to limit the pro
posed investigation to a study of the machinery of en
forcement, on the assumption that the law could be
enforced, when the question of whether the law could
be enforced was the real point at issue. If the law could
not be enforced, then no amount of study would pro
duce ways and means of enforcing it. To instruct the
commission in advance as to what conclusion it must
reach was to beg the question and to destroy the scien
tific value of the inquiry.

Moreover, to these critics of the law the President
was guilty of serious misjudgment in lumping the
Eighteenth Amendment with all other problems of law
enforcement and instructing his commission to consider
the prohibition of liquor as if it were precisely like the
prohibition of murder, robbery, or arson. There was an
indisputable distinction, the critics of the law insisted,
between the enforcement of prohibition and the en
forcement of the ordinary criminal law. This decision
arose from the fact that the desirability of prohibiting
murder or robbery or arson was not challenged any
where by anyone, whereas the desirability of prohibiting
liquor was challenged in many parts of the country by
many men and women of unimpeachable character and
position.

In these circumstances, critics of the law insisted that
disobedience of the Volstead Act was not ordinary law
lessness. It was political rebellion. The proper analogy
was not with ordinary criminal law but with the re
sistance of the Colonies to British taxation and with the
resistance of the Southern states to Negro suffrage.
There could be no realistic investigation of the problem
of enforcing prohibition which did not take this distinc
tion as its fundamental premise.

The Hoover Program 241

It was on May 2Oth, two and a half months after his
inauguration, that the President announced the ap
pointment of a Commission on Law Enforcement and
Observance, consisting of eleven members, with Mr.
George W. Wickersham as chairman. Eight days later
this commission met for the first time in Washington.
"We are under no illusions as to the difficulty of our
task," its chairman told the President. "We know there
is no short cut to the millennium/ 5 To the press he
added: "It should be understood that prohibition is
only one angle of our survey. The attitude of the Amer
ican people toward law enforcement is not bounded by
prohibition. This commission is not to be the arbiter
between the wets and drys, and I want to emphasize
that it was not appointed to decide that question/' 15

It is an interesting fact that while both the friends
and the foes of the Eighteenth Amendment now la
mented the submergence of prohibition as an unim
portant detail in the work of the President's commis
sion, and while Mr. Wickersham echoed the opinion of
the President that prohibition was only one of a very
large number of questions which needed to be explored,
both Mr. Wickersham and his commission were drawn
in the direction of prohibition as irresistibly as if they
were steel filings in the presence of a magnet.

On July 15th, approximately six weeks after he had
insisted that it was no part of his commission's work to
act as arbiter between the wets and drys, Mr. Wicker
sham proposed a possible plan of arbitration. In a letter
addressed to Governor Roosevelt of New York and
15 New York Times* May 29, 1929.

242 The Dry Decade

read by Mr. Roosevelt at the Governors' Conference,
then in session at Groton, Conn,, Mr, Wickersham sug-.
gested that the time had come for the states to accept
a real share of the heavy burden of enforcement. "If
the national government were to attend to preventing
importation, manufacture, and shipment in interstate
commerce of intoxicants, the states undertaking the
internal police regulations to prevent sale, saloons,
speakeasies, and so forth, national and state laws might
be modified so as to become reasonably enforceable and
one great source of demoralizing and pecuniarily pro
fitable crime removed/' 16

Though this suggestion was obscurely phrased and
somewhat casually proposed, both wets and drys in
terpreted the plan as evidence that Mr. Wickersham was
prepared to purchase more effective state assistance in
the enforcement of prohibition by giving the states more
authority to decide for themselves what type of pro
hibition they would have.

To the wets this seemed a statesmanlike proposal,
realistic enough to face what they regarded as the
fundamental problem of enforcement. To the drys,
however, any system which would permit one state to
depart from the code established for the country as a
whole was destructive of the essential principle of
prohibition. It was accordingly the drys and not the
wets who described this proposal as ill timed and who
rebuked Mr. Wickersham for giving aid and comfort
to the enemy.

Bishop Cannon deplored the incident as an exhibition
of " defeatism/' 17 Senator Caraway declared that the
letter to Governor Roosevelt "lent encouragement to
16 New York Times, July 17, 1929.
17 Ibid., July 23, 1929.

The Hoover Program 243

the criminal world" and demanded Mr. Wickersham's
resignation. 18 Mr. Clinton Howard, chairman of the
National United Committee for Law Enforcement,
insisted that "the people are in no mood to be trifled
with; they are not willing to have their Constitution
Wickershammed into a squatter sovereignty hodge
podge which means in effect that the Constitution of the
United States will operate only in those states which
may approve it/' 19

Meantime, the Governors' Conference to which Mr.
Wickersham's proposal was originally addressed dis
missed it gingerly with the explanation that it was too
controversial a question for Governors to handle. 20

It was in July, 1929, that this incident took place and
not until the following January that the public had any
further news concerning the activities of the Wicker-
sham commission, save that it had created a number of
subcommittees, enlisted the aid of various experts and
settled down to a quiet and systematic study of the
American machinery of justice. Meantime, during the
six months which now elapsed, the main outlines of
the prohibition policy of the new Administration were
becoming clear.

In a large sense this policy was based not on an
attempt to employ force but on an attempt to persuade
the public to accept the law as a duty of good citizenship.
Mr. Hoover had urged this point with unmistakable
feeling in his inaugural.

18 New York Times, July 18, 1929.
l *Ibid., July 22, 1929.
., July 19, 1929.

244 The Dry Decade

"A large responsibility rests directly upon our
citizens/' he insisted. "There would be little traffic in
illegal liquor if only criminals patronized it. We must
awake to the fact that this patronage from large num
bers of law-abiding citizens is supplying the rewards
and stimulating crime. ... No greater national service
can be given by men and women of goodwill who, I
know, are not unmindful of the responsibilities of
citizenship than that they should, by their example,
assist in stamping out crime and outlawry by refusing
participation in and condemning all transactions with
illegal liquor. Our whole system of self-government will
_ crumble either if officials elect what laws they will en
force or citizens elect what laws they will support. The
worst evil of disregard for some law is that it destroys
respect for all law. For our citizens to patronize the
violation of a particular law on the ground that they are
opposed to it is destructive of the very basis of all that
protection of life, of homes and property which they
rightly claim under other laws."

To this theme the President returned frequently
during his first year in office. In an address before the
Associated Press in April he declared that he wished
"to again reiterate that the problem of law enforcement
is not alone a function or business of government. . . ,
Every citizen has a personal duty in it." 21 In May he
sent a message to the National Congress of Parents and
Teachers in which he deplored the prevalence of the
theory "that a citizen may choose what law he will
obey" and insisted that "unless such illusions can be
dispelled the whole of our liberties are lost." 22 In
December he said in his message to Congress: "We can

21 New York Times, April 23, 1929.
., May 5, 1929.

The Hoover Program 245

no longer gloss over the unpleasant reality, which
should be made vital in the consciousness of every citi
zen, that he who condones or traffics with crime, who is
indifferent to it and to the punishment of the criminal,
or to the lax performance of official duty, is himself the
most effective agency for the breakdown of society/' 23

It was a vigorous and persistent effort which Mr.
Hoover made, to solve the problem of prohibition by
appealing for willing compliance on the part of otherwise
law-abiding citizens, but it was an effort which Mr.
Hoover's predecessors had often made before him. As
early as October, 1920, in the first year of prohibition,
and even before his election as President, Mr. Harding
had appealed for respect for this law "as a fundamental
principle of the American conscience." 24

Two years later, in his message to Congress in 1922,
Mr. Harding had uttered precisely the same warning
which Mr. Hoover was to repeat in his message to
Congress in 1929: "Let men who are rending the moral
fiber of the Republic through easy contempt for the
prohibition law, because they think it restricts their
personal liberty, remember that they set the example
and breed a contempt for law which will ultimately
destroy the Republic/' 25 This warning he had repeated
in one of his last speeches, when he declared at Denver
in June, 1923: "Ours must be a law-abiding Republic
and reverence and obedience must spring from the in
fluential and the leaders among men, as well as obe
dience from the humbler citizen, else the temple will
collapse/' 26

^Message to Congress, December 3, 1929.
^Address at Marion, Ohio, October i, 1920.
^Message to Congress, December 8, 1922.
26 Address at Denver, June 25, 1923.

246 The Dry Decade

Precisely to this same theme Mr. Coolidge had de
voted many of his public statements when he succeeded
Mr. Harding. " Enforcement of law and obedience to
law, by the very nature of our institutions, are not mat
ters of choice in this republic," he told a Governors'
conference in 1923. "The complementary duty to en
forcement of the law is obedience to the law." 27 This
maxim he repeated in an address before the Woman's
National Committee for Law Enforcement in April,

1924, in his speech accepting the Republican nomina
tion in August of that year, in his inaugural in March,

1925, and in his message to Congress in the following
December. 28 "For any part of our inhabitants to ob
serve such parts of the Constitution as they like, while
disregarding others," he said in his message a year
later, "is a doctrine that would break down all pro
tection of life and property and destroy the American
system of ordered liberty." 29

For nine years before Mr. Hoover entered office, Mr.
Hoover's predecessors had been making the same ap
peal for observance of the law and giving the same
warning of the consequences of widespread violation.

Proof that neither the appeals nor the warnings had
found their mark was apparent in the circumstances
which now compelled Mr. Hoover to repeat them.

Meantime, as far as the machinery of enforcement
was concerned, Mr. Hoover made it plain early in his

27 Address at Washington, New York Times, October 21, 1923.
28 New York Times, April u, 1924; August 15, 1924; March 5,

1925; December 9, 1925.
^Message to Congress, December 7, 1926.

The Hoover Program 247

administration that there would be no sensational ef
forts to accomplish by force what he plainly hoped,
despite the experience of his predecessors, to accomplish
by persuasion.

"It is the purpose of the federal administration," he
said in his address before the Associated Press in April,
1929, "systematically to strengthen its law enforcement
agencies week by week, month by month, year by year,
not by dramatic displays and violent attacks in order
to make headlines, not by violating the law itself,
through misuse of the law in its enforcement, but by
steady pressure, steady weeding out of all incapable and
negligent officials, no matter what their status." 30

To this early plan several additions were later made,
all aimed at the same goal of a sober and efficient effort.
The Prohibition Bureau, under new management, an
nounced that it would now cease " wasting time upon
pitiful, picayunish, non-commercial cases" and con
centrate its activities against large commercial viola
tions. 31 In order to detect such violations the Bureau
proposed to organize picked squads of men at strategic
points throughout the country, reporting directly to
Washington, and consisting of agents especially quali
fied "for the investigation of larger and more far-
reaching conspiracies." 32 An effort would be made to
improve the personnel of the entire service by the choice
of a higher type of men. The Bureau would attempt
"to train agents to act always as gentlemen, to use their
brains rather than their brawn in discharging their duties.
They will not use weapons except for self-defense." 33

30 New York Times, April 23, 1929.
* l lbid., July 31, 1930.

248 The Dry Decade

This was the Hoover program of enforcement. It is
possible that it seemed new and promising at the time
it was announced, a sharp break with the past and the
prelude to a more successful future. If this was true, it
was not because these various proposals were actually
new but because so many different plans to enforce the
law had been made at so many different times by so
many different men that a long series of experiments
with Mr. Hoover's plan had been forgotten.

The decision to avoid "dramatic displays" in order
"to make headlines" and to substitute quiet, orderly
enforcement for sensational methods had been an
nounced for the first time not in April, 1929, but in
December, 1927. "Officials of the Treasury Department
have ordered the abandonment of dramatic raids with
subsequent sensational advertising," it was announced
on this occasion. "Quiet, orderly enforcement of the law
rather than sensational efforts is the new policy of the
Prohibition Bureau." 34

The decision in favor of a "steady weeding out of all
incapable and negligent officials" had first been an
nounced in July, 1921, when Major Haynes came into
office with a plan to rid the enforcement service of all
agents who were not "of unquestioned integrity, firm
conviction and patriotic purpose." 35 It had been an
nounced for a second time in January, 1926, when
Major Haynes gave way to General Andrews, who
declared that he wanted only "the finest, cleanest-cut
type of intelligent, purposeful, clever men." 36 It had
been announced for a third time in September, 1927,

34 New York Times, December 2, 1927.
^Ibid., July 4, 1927.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary^ 6gth Congress, 1st Session, p. 1461.

The Hoover Program 249

when command of the enforcement service once more
changed hands and General Andrews gave way to Mr.
Seymour W. Lowman. For six years Mr. Lowman's
predecessors had been organizing an efficient staff. Now
Mr. Lowman announced that in weeding out inefficient
members of this staff his arm grew tired "signing orders
of dismissal/ 537

There were other familiar items in this new program.
The plan for picked squads of trained investigators at
strategic points had first been tried in June, 1921. 38
Formal assurance that enforcement efforts would be
kept strictly within the law dated back to April, 1926,
when General Andrews testified before a Senate com
mittee that agents had been warned to use "legal
methods only." 39 The present order to enforcement
officers to use weapons only in self-defense had
been anticipated by precisely the same order on
October 10, 1927,* but this fact had not prevented
agents from using weapons frequently in a wholly
different manner.

As for the important decision to avoid "wasting time
upon pitiful, picayunish, non-commercial cases" and
to concentrate on "commercial manufacture and com
mercial transportation": over a period of some years a
steady succession of statements had been issued, af
firming and reaffirming this same policy.

As early as March, 1926, General Andrews had de
clared that he "did not want agents on small stuff"
but wished them "to get at the big interests and the

37 New York Times, September 10, 1927.

38 Associated Press dispatch, Washington, June 17, 1921.

^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, 1st Session, p. 1433.
40 New York Times, October n, 1927.

250 The Dry Decade

sources of supply/' 41 Still earlier, in December, 1925,
Secretary Mellon announced that the Prohibition Bur
eau would "concentrate its efforts against the sources of
supply of illegitimate alcoholic beverages and against
the organized traffic/' 42 Two years before this, in
October, 1923, Major Haynes deplored a policy of wast
ing time on anything save "the larger conspiracy viola
tions and border problems." 43 As early as January,
1921, on the first anniversary of prohibition, the Com
missioner of Internal Revenue had insisted that for the
Bureau to attempt to deal with cases involving minor
violations "would be an unreasonable undertaking/' 44

This was the background of the enforcement program
which now appeared in 1929. If the various plans which
it proposed had all been used before, and had all
achieved so little that by this time the public had for
gotten they were tried, it was not because these plans
lacked merit as ideas. The trouble was that they had
been fatally handicapped in practice by the performance
of men in public office, by lack of funds and by opposi
tion to the law.

Like Mr. Hoover's appeal for observance of the law,
Mr. Hoover's plan for enforcement of the law had its
roots deep in the unsuccessful experience of nine years'
effort.

It was on January 13, 1930, in the tenth month of the
new Administration, that Mr. Wickersham's Law En
forcement , Commission reappeared as a factor in the

York Times, March 12, 1926,
* 9 December n, 1925.
., October 14, 1923.
M Ibid., January 16, 1921.

The Hoover Program 251

situation, with a formal report submitted to the Presi
dent and in turn submitted by the President to Con
gress. This report mirrored the interest which its chair
man had shown in the problem of prohibition during
the summer of the previous year. Though the commis
sion now had "all law" as its field of inquiry, its first
report dealt with enforcement of the Volstead Act to
the exclusion of all other questions.

There were four proposals in this first report. The
commission recommended a codification of the various
prohibition statutes which had been enacted over a
period of forty years. It urged the importance of en
acting new legislation to reenforce the padlock provi
sions of the Volstead Act, since experience had shown
that these provisions could be easily evaded. It recom
mended that in the interest of efficient enforcement of
the law the Prohibition Bureau be transferred from the
Treasury Department to the Department of Justice.

This was the same proposal which had first been rec
ommended more than ten years before this time, in
June, 1919, by the Secretary of the Treasury; 45 recom
mended again in 1920 by another Secretary of the
Treasury; recommended for a third time in 1924 by
the senior circuit judges of the country; and consistently
opposed through these years by the most active friends
of prohibition. To transfer the Prohibition Bureau to
the Department of Justice, the Anti-Saloon League had
insisted, would be to jeopardize the whole experiment
with national prohibition "by creating more oppor
tunities to shift responsibility and to pass the buck." 46
If the Anti-Saloon League had subsequently changed

^Chapter V, supra.

^New York Times, December i, 1924; also November 28,
1924; May 29, 1921; April 5, 1921.

252 The Dry Decade

its mind it was presumably because it was now prepared
to accept a change which pegged the hope of enforce
ment on a new objective.

Over these first three proposals, when they appeared
in the report of the Wickersham commission, there was
little disagreement. The fourth proposal, however, en
countered opposition. This was the plan for a change
in the law to permit "casual or slight violations" to be
handled in the courts without trial by jury*

It was natural that the commission should have
found some special interest in this phase of the question
of enforcement, not only because ten of its eleven mem
bers were either judges or lawyers, but because the
problem of congestion in the courts had stood out con
spicuously since the first year of prohibition. 47 Now,
in the tenth year, there was no sign of a let-up in prohi
bition cases. On the contrary, the number of criminal
prosecutions begun by the federal government had
reached a new all-time high at 56,786 during Mr.
Hoover's first year in office. 48 At the end of this year,
18,690 cases were still listed as unfinished business. 49
Those which were settled had been settled principally
by pleas of guilty. Less than 7 per cent of these cases
had come to trial. 60 Bargain day was still the accepted
method of disposing of prohibition in the courts.

As might have been anticipated, the condition of
court calendars varied substantially in different judicial
districts. By use of the bargain day method or by virtue

47 Chapter III, supra.

^Report of the Attorney General oj the United States, fiscal
year ended June 30* 1929, p. 29.

^Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 70.

The Hoover Program 253

of a smaller number of cases, some courts had managed
to keep their dockets clear. In October, 1929, approxi
mately one month before the Wickersham commission
filed its first report with the President, and three months
before this report was submitted to Congress, the senior
circuit judges had made a survey of conditions in the
different courts. They had found in some circuits the
first and fourth, for example that "business is being
satisfactorily attended to." They had found in other
circuits, such as the fifth and ninth, that new judges
were imperatively needed. 51 In the opinion of the
Wickersham commission, however, there were "serious
objections to multiplying courts/' Moreover, bargain
day itself was an " unseemly process." 52 The commission
therefore proposed a new system of trials in petty cases
before United States Commissioners, based on the
following plan:

(1) If the accused person wished to plead guilty, well
and good; the commissioner would sentence him.

(2) If he did not wish to plead guilty, the commissioner
would hear his case, file a report with the court, and
the court (still without benefit of jury) would render
a verdict.

(3) If, meantime, the accused person chose to take ex
ception to the report of the commissioner, he could
do so by demanding (within three days' time) a
trial by jury.

(4) In this case the district attorney could elect whether
to go to trial on a minor offense or to start the case
all over by accusing the defendant of a grave felony.

51 New York Times, October 7, 1929.

52 First report to the President, New York Tiwits, January 14,
1930.

254 The Dry Decade

It was obvious that this plan placed wide powers of
discretion in the hands of the district attorney. In effect,
it gave him a club with which to persuade the defendant
to acquiesce in the denial of a trial by jury. Whether
this proposal was sound, whether it was more seemly or
less seemly than the institution known as bargain day,
whether the plan would relieve congestion in the courts
or actually increase it, by creating a new system which
might entail not one hearing but two or even three
before a case was settled: these were questions destined
to be debated for some months by the Wickersham
commission and various competent and eager critics. 63

It was the plan for trials without jury which captured
the headlines in the daily press and rapidly became
identified in the public's mind as the program of the
Wickersham commission. This was inevitable, since the
plan was the one substantial change in existing law
which the commission had chosen to recommend. Yet
it is curious that emphasis on this one point should have
managed so completely to obscure another section of
this first report which dealt with more fundamental
problems than punishment for "casual or slight viola
tions." The boldest section of the report, in fact, seems
on the whole to have been the section which attracted
least attention, possibly because it failed to carry any
recommendation to the President.

in defense of the plan, Mr. Wickersham, New York
Times, January 16 and 23, 1930; in criticism, Howard
Lee McBain, New York World, January 1 8, 1930; Senator
Robert F. Wagner, Congressional Record, yist Congress, 2d
Session, pp. 3129-3132.

The Hoover Program 255

In a brief passage of four hundred and fifty words the
Wickersham commission bluntly raised two formidable
questions which it called " observance 5 ' and "enforce
ment/ 5

Under "observance" the commission pointed out that
the problem of enforcing prohibition in the United
States could not be separated from "the large question
of the views and habits of the American people with
respect to private judgment as to statutes and regula
tions affecting their conduct/ 5 It was important to note
"the divergences of attitude in different sections of the
country 55 regarding prohibition. It was important to
note the tradition of a "right of revolution 55 against
laws attempting to regulate standards of private con
duct. It was important to remember that majorities or
large minorities of the American people had frequently
chosen to disobey laws of which they disapproved:
"We must not forget the many historical examples of
large-scale public disregard of laws in our past/ 5

Meantime, under "enforcement, 55 the commission
frankly confessed that the authority of the federal
government had failed to keep pace with its responsi
bilities. Nine years of prohibition had developed "a
staggering number of what might be called focal points
of infection/ 5 To deal with a problem "of this size and
spread, 55 the government could draw only "on a portion
of the personnel of three federal services, whose staffs
aggregate about 23,000. Approximately one tenth of
this number is in the investigative section of the
prohibition unit. Of the remaining 20,000, only a small
proportion of the personnel is available for actual pre
ventive and investigative work. The remainder is en
gaged in work far different from prohibition/ 5 To the
commission the enormous gap between the responsibili-

256 The Dry Decade

ties of the government and its small staff of 2,300 agents
seemed too obvious for comment. " These figures," the
commission said, "speak for themselves/'

For a moment, the country was challenged to face the
fact that if the appeals of three Presidents for loyal
observance of the law had fallen on barren ground it was
because of a deep-rooted conviction of the American
people concerning private judgment of laws governing
their private conduct and the sharp "divergences of at
titude in different sections" regarding prohibition. The
country was challenged to face the fact that if no
agency existed powerful enough to overrule such opposi
tion as was inherent in these sources, it was because no
President and no Congress had been willing to go be
yond a policy of quiet, orderly enforcement and accept
responsibility for creating such an agency.

At this point, however, the commission stopped
abruptly, followed the logic of its own argument no
further, and turned its attention to the problem of
deciding whether bargain days or trials before federal
commissioners promised a better way of imposing
sentences for casual violations. Having recognized that
the attitude of the public was a fundamental factor in
the enforcement of the law, and having recognized the
total inadequacy of existing federal agencies of inves
tigation and prosecution, the commission made no rec
ommendations whatever on either of these points.

The one new proposal which it made was concerned
not with the large problems of "observance" and
"enforcement," but with the small problem of handling
petty cases in the courts.

CHAPTER XI
The Appeal to the States

1 HE Wickersham commission avoided writing finis
in its first report. Such modest plans as it proposed had
been suggested, the commission said, without prejudice
to " any ultimate program which we may have to rec
ommend/' Meantime, the question which confronted
the Hoover Administration in its second year was how
to enforce a law which failed to take cognizance of
"divergences of attitude in different sections of the
country," if these divergences continued to exist despite
all efforts to end them by persuasion.

This was, and always had been, the essence of the
problem. Divergences of attitude had been present from
the start. The pattern of state legislation on the question
of intoxicating liquor was not uniform, or nearly uni
form, when the Eighteenth Amendment took effect.
It was as variegated as Joseph's coat of many colors.
At one extreme stood a group of agrarian states which
had adopted bone-dry prohibition laws. At the opposite
extreme stood a group of industrial states which had
adopted no prohibition laws whatever. Between these
two extremes stood a third group of states, some
agrarian, some industrial, which still legalized the pos
session and the use of intoxicating liquor in certain
forms but regulated its manufacture, its sale, and its

257

258 The Dry Decade

transportation in accordance with those widely varying
local standards of which the Wickersham commission
took note in 1930. It was into this medley of states with
bone-dry prohibition laws, states with no prohibition
laws, and states with prohibition laws reflecting a sharp
disagreement in methods between different communities
that the Eighteenth Amendment introduced a universal
and uncompromising standard.

Marking time during its second year, pending a fur
ther report from the Wickersham commission, the Hoover
Administration faced once more the problem of enforcing
this standard realistically in all sections of the country.

In its first report the Wickersham commission had
described the problem of enforcement as a question of
dealing effectively with "a staggering number" of
"focal points of infection. 3 ' If the commission had failed
to amplify this comment, and thereby to suggest the
type of machinery which might reasonably be expected
to enforce the law, there were reports available from
other official sources which cast some light upon this
cryptic statement.

Unquestionably the commonest focal point of in
fection in 1930, and the most persistent, was the illicit
still. Other sources of supply continued to feed the
traffic in intoxicating liquor. Smuggling was still a
serious enough problem for the Secretary of the Treas
ury to propose in January, 1930, simultaneously with
publication of the Wickersham report, that a military
guard be mounted on the Canadian frontier and the
whole border closed to travel "except at points of entry

The Appeal to the States 259

designated by the President/' 1 Industrial alcohol was
enough of a problem for the Prohibition Bureau to report
that lack of power to compel holders of permits to open
their books " makes it almost a superhuman task to
detect them in violations/' 2 On the whole, however,
industrial alcohol and smuggled liquor were now def
initely minor factors. It was the illicit still which had
unmistakably become the chief problem of enforcement.

As early as 1926 Congress and the Coolidge Ad
ministration had been warned that such a development
was altogether likely. Testifying before a committee of
the Senate at that time, General Andrews had described
illicit stills as the one infallible source of production:
"Where you cut off a source of supply of another nature,
the moonshine wells up to fill the gap. . . . The old law of
supply and demand carries in the case of bootleg liquor
the same as in the case of any other merchandise/' 3

Subsequent events had borne out the accuracy of
this prediction. During the latter half of 1926 and
throughout 1927 the problem of the illicit still steadily
assumed a place of more importance in the govern
ment's communiques. In 1928 Dr. James M. Doran,
by this time in charge of the Prohibition Bureau,
described illicit distilling as "the major problem of
enforcement/' 4 In 1929 officials of the Bureau reported
that 35,200 stills and distilleries had been seized during
the previous year, together with twenty-six million
gallons of mash, and suggested that " any estimate as

Report to the President, New York Times, January 14, 1930.
^Industrial Alcohol, United States Treasury Department, 1930,

P- 25.
^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, ist Session, p. 449.
4 New York Times, December 27, 1928.

260 The Dry Decade

to what percentage of all illicit stills in operation is
represented by the number seized would be sheer
conjecture." 5

By this time, approximately the time when the
Hoover Administration entered office, the flow of liquor
from illicit stills was in full swing, and during Mr.
Hoover's first year nothing stopped it. On the contrary,
the Prohibition Bureau reported that the production of
distilled liquor steadily expanded. "There seems to be a
constant growth in this production in the most modern
type of plants," said the Commissioner of Prohibition
at the end of the first year of the new Administration.
"The use of corn sugar in the illicit manufacture of
alcohol is causing us grave concern." 6

Production of corn sugar had increased from
152,000,000 pounds in 1921 to 960,000,000 pounds in

1929. There was no way of explaining this enormous
increase, in the opinion of the Prohibition Bureau,
except on the theory that the great bulk of it had gone
into manufacture of illicit liquor. " For every gallon of
industrial alcohol diverted," said Dr. Doran in January,

1930, "there are at least seven or eight gallons of high-
proof alcohol produced illicitly from corn sugar and put
on the bootleg market in the form of alcohol, gin, and
alleged imported whisky. The corn-sugar racket now
surpasses all others in the field of operation of the
bootlegger." 7

During the same year which the Wickersham com
mission had devoted to a study of ways of handling
minor violations in the courts, Dr. Doran's agents had
seized 27,336 stills, of which 3,434 were "not small pot

5 New York Times, January 5, 1929.
6 /itW., January 10, 1930.
^., January 18, 1930.

The Appeal to the States 261

stills, but big columns, costing anywhere from $5,000
to $50,000 to build," constructed by expert chemists
and capable in some cases of producing from 500 to
2,000 gallons of alcohol a day, 8

One indication of the importance which this problem
had now assumed is apparent in the fact that three
hundred stills with a capacity of 2,000 gallons could
produce more hard liquor than the United States con
sumed before the adoption of the Eighteenth Amend
ment.

There were various reasons, all easily identified, why
illicit stills should have come to the front in these later
years as the chief problem in enforcement.

In the first place, this method of production was rela
tively simple, since it involved no effort to divert in
dustrial alcohol from manufacturers who were under
bond, but merely required the purchase of a common
article in the open market. In the second place, it was
relatively safe, particularly when it used corn sugar,
since the distillation of alcohol from corn sugar produced
almost no odor and left no mash. In the third place, it
was highly economical, since a hundred pounds of corn
sugar could be purchased in the market for $5. In the
fourth place, as Dr. Doran pointed out, alcohol pro
duced in this manner in a modern plant was "of the
highest type and as good as that manufactured leg
ally." 9

It is not strange that in these circumstances com
sugar distillation should have prospered. The very
advantages of this method, from the point of view of the

8 New York Times, January 10 and 23, 1930.
id. 9 January 10, 1930*

262 The Dry Decade

bootlegger, constituted its difficulties from the point of
view of the enforcement agent. Using a product readily
obtainable and not easily detected when it was put to
an illicit use, the bootlegger could manufacture a high
standard of alcohol at an exceedingly low cost for sale
in a market which was prepared to pay high prices.
The risks involved in this enterprise were negligible.
Its profits were enormous.

It was the clearest result of this development in the
economics of an illegal liquor traffic that it definitely put
an end to the theory that the law could be enforced
with a compact staff of a few thousand men in Wash
ington and a modest amount of assistance from the
states.

If the chief source of illegal liquor had been industrial
alcohol, it would have been possible to deal with this
source effectively by putting an agent in every factory,
every wholesale house, and every retail store where in
dustrial alcohol was bought or sold. Such an effort
would have required a much larger staff of agents
than the government had ever had. It would have
required a much more honest staff of agents than
the government had ever had. It would also have
required more autocratic powers of control over
American industry than Congress had been willing to
lodge in the Prohibition Bureau. Nevertheless, the main
problem of enforcement in this case would have been
limited to the task of maintaining an effective watch
over a known number of points at which alcohol might
be diverted to illegal purposes.

Similarly, if the chief source of supply of the boot
legger had been liquor smuggled across the borders, the
problem of enforcement would have required more
thorough measures than an occasional series of breath-

The Appeal to the States 263

less drives, but it would at least have been a problem
localized in a long strip of seacoast and of border.

The problem of illicit stills, however, was neither
localized in one section of the country nor confined
to a relatively small number of industries. It was a
problem as broad as the country itself and as limitless
as its three million square miles of territory. To expect
the federal government to solve this problem with the
staff of 2,300 agents which the Wickersham commission
counted for the President in January, 1930, would have
been to expect the impossible. If these agents had done
nothing but search the country for illicit stills, each
agent would have had 1,316 square miles of territory to
police, twenty-four hours of the day and night. Mean
time, to expect the states to solve the problem as a
mere by-product of the administration of ordinary local
laws would have been to overestimate the strength of
state enforcement agencies.

For while the states had many more police officers
than the federal government a total of approximately
175,000 marshals, constables, sheriffs, and policemen
in I930 10 the responsibilities of these officers included
the enforcement not of one law but of many laws. An
increasingly large part of the police force of every city
was assigned exclusively to the enforcement of traffic
regulations. No contribution to the effort of the federal
government could reasonably have been expected of
these officers. It was idle to suppose that a policeman on
duty at a street corner from eight in the morning until
six at night could help enforce the Volstead Act. There
were other policemen, constables, and sheriffs not so
narrowly restricted in their movements. These officers,

"Assistant Attorney General Youngquist, New York Times,
August 29, 1930.

264 The Dry Decade

however, were not local prohibition agents. They were
general officers of the law, charged with the execution
of a thousand duties which varied from the protection
of jewelry stores against night robbery to the policing of
crowds at baseball games and the prevention of thefts of
motor cars to the service of warrants on citizens who
failed to pay their paving bills.

The states and municipalities were frugal in their
law enforcement. They had never chosen to employ
more officers than they could use. They had chosen,
instead, to starve their police departments in the
interest of low taxes. In these circumstances, there
were few peace officers who found themselves at liberty
to give their whole time to detecting violations of the
Eighteenth Amendment. It was obviously true in many
cases that local police officers discovered violations of
the Eighteenth Amendment only when they stumbled
upon such violations in pursuance of other duties.

There was one way, and in reality only one way,
to make an effective search of three million square miles
of territory in order to detect and to destroy illicit stills
which might lurk in any tenement basement or any
deserted strip of countryside. That way was to organize
a force of federal or state police specifically devoted to
this ambitious task and adequate enough in personnel
to offer reasonable hope of its accomplishment.

It had always been the theory of the federal govern
ment that responsibility for local enforcement of the
Volstead Act properly rested on the states. The federal
government, to be sure, had conducted an enormous
number of local raids. It had conducted so many raids

The Appeal to the States 265

that by the end of 1929 it had arrested a total of
550,307 people. 11 These arrests, however, admittedly
apprehended only a small fraction of those who were
guilty of violating the law. "We do not begin to arrest
all that are guilty/* General Andrews had told a com
mittee of the Senate in 1926. "We cannot/' 12 The federal
government had always been involved in a certain
amount of local police work, but never deeply enough
involved to enforce the law effectively. Such responsi
bilities as it had accepted in this field it was plainly
reluctant to expand.

There were two chief reasons for this reluctance. In
the first place, various spokesmen of the government
had long insisted that a policy of too active interference
from Washington in the police work of the states would
be certain to result in confusion and resentment. "I
venture to say," wrote President Harding in 1923, "that
if by reason of the refusal or failure of any state to dis
charge its proper duty in such connection the federal
government is at length compelled to enter upon the
territory and jurisdiction of the state and to set up those
police and judicial authorities which would be required,
the most difficult and trying situations would inevitably
arise. More or less conflict between state and federal
authorities would seem unavoidable in such circum
stances. The impression would be created that the
federal government was assuming to interfere with the
functions of the states and the distressing results that
would ensue readily suggest themselves." 13

^Statistics Concerning Intoxicating Liquors, United States

Treasury Department, 1930, p. 64.
^Hearings of a Subcommittee of the Senate Committee on the

Judiciary, 6gth Congress, ist Session, p. 57. Cf. Chapter VI,

supra.
13 New York Times, May 17, 1923.

266 The Dry Decade

In the second place, any such activity would be cer
tain, as Mr. Harding also pointed out, 14 to involve the
federal government in enormous expense inevitably
requiring the imposition of new taxes. How large an
item this expense would be, Mr. Harding did not at
tempt to estimate. Five years later, testifying before a
committee of the House of Representatives, the fed
eral Commissioner of Prohibition set the figure at
$3OO,ooo,ooa 15 This would have multiplied the appro
priation of the Prohibition Bureau approximately by
twenty and increased its staff accordingly. Even with
this vastly increased expenditure, however, there would
have been no slack in the enforcement service. If the
purpose of giving the Prohibition Bureau ^300,000,000
was to enable it to make a serious effort to solve what
had now become its major problem, the problem of
searching the country for illicit stills, each enforcement
agent would still have been left with sixty-six square
miles to cover.

In these circumstances, reluctant to accept either
the heavy cost of an adventure with a federal police
force or the political consequences which such an ad
venture might entail, the federal government had in
sisted from the outset that its own responsibilities were
limited and that the duty of supplying an effective staff
of agents for local police work was clearly imposed on
the states by that clause in the Eighteenth Amendment
which gave the states "concurrent power to enforce/'

On this point, however, the government encountered
no unanimity of opinion. There were, and had been
for some years, two sharply different theories concerning
the meaning of " concurrent power/*

14 Address at Denver, June 25, 1923.
15 Chapter X, supra.

The Appeal to the States 267

As an earlier chapter has pointed out, no mention of
concurrent power occurred in the Eighteenth Amend
ment as originally adopted by the Senate. 16 The phrase
appeared for the first time when the Amendment
reached the House. On this occasion the chairman of
the House Judiciary Committee undertook to explain
why the language of the Senate's resolution had been
changed.

Most of the members of the committee, he said, felt
that the resolution should contain a specific reservation
to the states "of power to enforce their prohibition
laws." Accordingly, the resolution had been amended to
include concurrent power. " I believe, regardless of our
division on the wet and dry question/' said the chairman
of the Judiciary Committee, "every member will agree
with us that this is a wise and proper amendment. No
body desires that the federal Congress shall take away
from the various states the right to enforce the prohibi
tion laws of those states. If we do not adopt this amend
ment from the committee there might be a fight in
Congress every two years as to whether the states
should be given the right to help enforce this proposed
article of the Constitution. Because, as I see it, after the
states have delegated to the federal Congress power to
do a certain thing, for instance, to stop the manufacture
and sale of alcoholic liquors for beverage purposes, the
question is whether the state has not turned over to the
federal Congress the exclusive right to enforce it/' 17

Stated in this form, the plain purpose of the clause

"Chapter II, supra.

17 Congressional Record, 65th Congress, 2d Session, p. 423.

268 The Dry Decade

giving the states concurrent power was (i) to make sure
that the states would not lose power to enforce their
own prohibition laws and (2) to avoid "a fight in Con
gress every two years" over the " right " of the states
to help the federal government enforce the Eighteenth
Amendment.

This was as far as the Judiciary Committee went,
and the House itself showed no disposition to push the
matter further. During the whole debate on the adop
tion of the Eighteenth Amendment there was no dis
cussion of the meaning of concurrent power. The
House was plainly ready to accept without question the
assurance of its committee that the states needed this
added protection of their right to enforce their own
prohibition laws. It was plainly ready to accept, also
without question, the assurance of its committee that
the states would be eager to help the federal govern
ment enforce the Eighteenth Amendment and that the
result would be to free Congress of an enormous burden.

As the chairman of the committee explained the
advantages of this plan: "We do not want ten thousand
federal officers, with all the expense of salaries, going
over the country enforcing these laws when the states
have their own officers to do so and are willing to do
so/' 18 This explanation satisfied the House, though it
left unanswered the question of what would happen if
some of the states or all of the states proved in fact not
"willing to do so."

Apparently, in this case, full responsibility for en
forcement would remain with Congress, There was no
suggestion in the statement of the chairman of the
Judiciary Committee, and no suggestion on the floor of

^Congressional Record, 6$th Congress, 2d Session, p. 424. Cf.
Chapter II, supra.

The Appeal to the States 269

the House itself, that this proposal for concurrent
power imposed upon the states any new responsibility
which they did not have before. The plain purpose of
the concurrent clause, in the form in which it was offered
and expounded in the House, was to protect the states
in the enforcement of their own legislation and to
pave the way for the prompt acceptance by the federal
government of such assistance in the enforcement of
the Eighteenth Amendment as the states chose "will
ingly" to offer.

Nevertheless, though this was the interpretation
given to concurrent power in the House, and though no
different interpretation could possibly have been in
tended in the Senate, since the concurrent clause had
not been written when the Senate debated prohibition,
it was not long before a new and more ambitious inter
pretation was placed upon this section of the Eight
eenth Amendment, According to this later theory, the
original purpose of the House was not the decisive fac
tor. The Eighteenth Amendment gave the states con
current power. In so doing, it made the states coequal
partners with the federal government and invested
them with coequal responsibility for enforcement of the
law, both legally and morally.

If there was comparatively little discussion of this
theory in the early days of prohibition, it was for one
reason because the importance of effective state coopera
tion had not been appreciated at full value. The friends
of the Eighteenth Amendment had been confident that
the law would be obeyed. They had foreseen no wide
spread and determined opposition on the part of other
wise law-abiding citizens. They had predicted that the

270 The Dry Decade

law could be enforced without difficulty on an annual
appropriation of five million dollars. 19 There was little
need for more millions from the states in such a fore
cast. As time passed, however, as opposition to the law
persisted, as the full scope of the problem of enforce
ment came gradually to be realized and as the federal
government continued to plod along with a staff of
agents wholly disproportionate to the task in hand, the
theory that the states were legally and morally bound
to share the heavy burden of enforcement steadily ac
quired emphasis.

In the years from 1925 to 1930 this theory of the
states as coequal partners of the federal government
was argued at length on many occasions by many friends
of prohibition, notably by Mr. Wheeler and Mr. Mc-
Adoo, but argued by no one with more persistence and
more vigor than by Senator Borah.

To Mr. Borah it seemed unmistakably clear that the
concurrent clause of the Eighteenth Amendment im
posed upon the states a responsibility which they could
not dodge with honor. "Under this section the obliga
tion laid upon the state within its jurisdiction is no
different and no less than that laid upon Congress or
the federal government. . . . The Constitution of the
United States affirmatively prohibits certain things and
then authorizes both Congress and the states to enforce
the Constitution. If the will of the people means any
thing, as embodied in the national Constitution, neither
Congress nor the states can disregard this command
thus embodied in the Constitution. Both are under legal
and moral obligation to make the will of the people as
expressed in the Constitution effective/' 20
19 Chapter III, supra.
20 New York Times, July 28, 1929.

The Appeal to the States 271

On this point the opinion of the Supreme Court in a
celebrated case arising under the Eighteenth Amend
ment, United States vs. Lanza, 21 seemed to Mr. Borah
entirely reassuring. For while the court had held in this
case that the state is free to enact prohibition laws,
"the court nowhere intimated/' insisted Mr. Borah,
"that the state is free to disregard the national Consti
tution and to refuse to enact laws. The state is free to do
anything it may choose in harmony with the national
Constitution, but it is not free to act contrary to the
national Constitution, and it acts contrary to it when it
declines or refuses to enact laws to make it effective." 22

In short, the failure of the states to adopt laws in
support of the Eighteenth Amendment was as patently
illegal and as morally reprehensible as the adoption of a
law which openly defied the Amendment. "When a
provision of the Constitution is adopted, the state can
not assume an attitude of indifference toward it or an
attitude of indifference toward its maintenance. The
state is an integral part of the Union, it receives vast
privileges under the Constitution and owes an active
duty in return. It is bound to be interested in maintain
ing the federal Union. It is bound to be concerned in
seeing that the federal Union is a going concern and,
therefore, interested in supporting and maintaining the
Constitution. 5523

If this theory of the Eighteenth Amendment was
convincing to the friends of prohibition, and if the

21 26o 1L S. 377 (1922).

York Times, July 28, 1929.

272 The Dry Decade

responsibility of the states under the concurrent clause
seemed unequivocally clear, the theory did not lack able
and aggressive critics. Mr. Borah's interpretation of the
concurrent clause was challenged by the Voluntary
Committee of Lawyers in New York. 24 It was chal
lenged by Howard Lee McBain, Ruggles Professor of
Law at Columbia University. 26 It was challenged,
vigorously and persistently, by Governor Ritchie of
Maryland. 26

None of these critics of Mr. Borah's theory attempted
to dispute the obvious fact that the Eighteenth Amend
ment imposed the duty of obedience on every citizen of
the country in whatever state he lived. Their quarrel
was with Mr. Borah's conception of the duty of the
states themselves. Nothing in the Eighteenth Amend
ment, they insisted, had imposed upon the state govern
ments any responsibility, either legal or moral, to
assist the federal government in the enforcement of this
legislation.

In support of this theory Governor Ritchie turned
back to the original debate on the Eighteenth Amend
ment in the House of Representatives. On this occasion
the chairman of the Judiciary Committee had inter
preted the concurrent clause as a protection to the
states in the enforcement of their own prohibition laws,
The House had accepted this interpretation. The
Supreme Court, insisted Governor Ritchie, had taken
the same view. For in the case of United States vs.
Lanza, discussed by Senator Borah, the Supreme Court
had held:

York Times, December 16, 1929.
^Prohibition: Legal and Illegal, pp. 27-31,

38 New York Times 9 February 6, 1927; Auguit 15, 1929;
August 16, 1929; December 15, 1929.

The Appeal to the States 273

To regard the Amendment as the source of the power oi
the states to adopt and enforce prohibition measures
is to take a partial and erroneous view of the matter.
Save for some restrictions arising out of the federal
Constitution, chiefly the commerce clause, each state
possessed that power in full measure prior to the
Amendment, and the probable purpose of declaring a
concurrent power to be in the states was to negative
any possible inference that in vesting the national
government with the power of country-wide prohi
bition, state power would be excluded*

To this the court had added the following comment
concerning the power of the states to write prohibition
laws:

Such laws derive their force, as do all new ones consis
tent with it, not from this Amendment but from power
originally belonging to the states, preserved to them
by the Tenth Amendment and now relieved from the
restriction heretofore arising out of the federal Con
stitution.

In other words, the court had held that the states
derived no power from the Eighteenth Amendment
except perhaps the power to act upon interstate and
foreign liquor, a power which had already been granted
to them by act of Congress some years before the
Amendment was proposed. "The result is unmistakable
and uncontrovertible," insisted Governor Ritchie. "In
asmuch as the states do not derive their power to pass
state enforcement laws from the concurrent clause of
the Eighteenth Amendment, it follows, of course, that
the Eighteenth Amendment imposes no duty whatever

274 The Dry Decade

on the states to pass such laws. The Amendment simply
preserves to the states the power in this respect which
they already had. It grants them no new power, and
since it grants them no power of any kind obviously it
imposes no duty of any kind/' 27

With this view Mr. McBain concurred: "It is curious
that so little public attention has been given to this
pronouncement by the court. It is of the highest im
portance. For manifestly if the states derive from the
Amendment no power to enact prohibition laws, they
are of a certainty under no obligation, moral or legal,
to enact such laws because of the Amendment. . . .
They are undoubtedly absolved from all responsibility
in respect to its enforcement by the high priests of
American law. Whatever may be the widespread notion
to the contrary, this is the law of the Constitution as
expounded by its final determiner, the Supreme Court
of the United States." 28

In Senator Borah's theory of concurrent power and
Governor Ritchie's interpretation of the same clause
there was a wide discrepancy in point of view, reflecting
a disagreement over the merits of prohibition as well as
over the rulings of the Supreme Court and the theory
of the Constitution. Meantime, whether it was the duty
of the states to match the federal government man for
man and dollar for dollar in the enforcement of the law,
or whether no semblance of legal or moral responsibility
rested on the states, this much was certain: the federal
government had no power to compel the states to take

27 Address at Boston, December 10, 1929.

^Prohibition: Legal and Illegal, pp. 30-31.

The Appeal to the States 275

action against their will. As Mr. Borah himself pointed
out, "We cannot mandamus a state to pass a state law,
to execute or enforce a law/* 29 The states were sovereign
bodies. Short of the application of armed force, there
was no way in which to enlist their cooperation in this
enterprise save through the power of persuasion.

The attempt to exercise this power of persuasion had
begun at an extremely early date. For obvious reasons,
including the important element of cost and the equally
important element of taxes, successive Presidents had
chosen to adopt the same interpretation of the law as
that championed by Mr. Borah. As early as December,
1922, Mr. Harding made the first formal plea on behalf
of a President of the United States for more effective
assistance by the states. Prohibition had not been suc
cessfully enforced. There were "conditions relating to
its enforcement which savor of nation-wide scandal/ 5
It was important that the states contribute more to
this experiment than they had contributed to date. "I
purpose to invite the Governors of the states and
territories, at an early opportunity, to a conference with
the federal executive authority." 30

From this point forward the appeal for assistance
by the states had been repeated by successive Presidents
from year to year as regularly as the plea for loyal
observance of the law on the part of private citizens.
In May, 1923, Mr. Harding urged the states "fully and
literally" to assume "their part of the' responsibility of
maintaining the Constitution." 31 In June of the same
year he deplored "a growing laxity on the part of the
states" and appealed for "real cooperation between na-

29 New York Times, July 28, 1929.
30 Message to Congress, December 8, 1922.
31 New York Times, May 17, 1923.

276 The Dry Decade

tional and state authority/' 32 In October Mr. Coolidge
took up the burden of Mr. Harding' s appeal and urged
the states to come to the aid of the federal government
by using the machinery of local government "to the
full extent of its capacity to secure the enforcement of
the law." 33

Time and again, during his five and a half years in
office, this invocation to the states appeared and re
appeared in Mr. Coolidge's public statements on the
problem of prohibition in the United States. To this
same theme he returned in his message to Congress in
December, 1923; in his Memorial Day address at
Arlington in May, 1925; in his message to Congress in
December, 1925; in his message to Congress in Decem
ber, 1926; in his message to Congress in December,
1927; in his message to Congress in December, 1928,
three months before the inauguration of the Hoover
Administration.

By this time, certainly, the appeal for effective state
assistance had been stated so frequently and so earn
estly that it must have rung in the ears of every state
legislature in the country. "Vigilance on the part of
local governments would render enforcement efforts
much more successful." 34 "Local authorities, which
always had been mainly responsible for the enforcement
of law in relation to intoxicating liquor, ought not to
seek evasion by attempting to shift the burden wholly
upon the federal agencies." 36 "The federal government
... is entitled to the active cooperation of the states." 36

S2 New York Times > June 26, 1923.

^Ibid. 9 October 21, 1923.

^Message to Congress, December 6, 1927.

id., December 7, 1926.

id., December 3, 1928.

The Appeal to the States 277

"We need their active and energetic cooperation, the
vigilant action of their police and the jurisdiction of
their courts to assist in enforcement." 37

Tireless as were these efforts to stimulate the states
into aggressive action, the net result of eight years of
earnest appeals from Washington was an appropriation
by the states of $698,855 for enforcement in I927, 38 the
latest year for which figures of the Census Bureau were
available when the Hoover Administration entered
office.

At this point the states were contributing to the
experiment with national prohibition less than a penny
a year for each of their inhabitants. They were devoting
to Mr. Borah's theory of their heavy responsibilities
under the concurrent clause enough funds to give each
state an average of five prohibition agents at a salary of
$3,000. They were spending for the enforcement of the
Eighteenth Amendment approximately one-eighth of
the sum they were spending for the enforcement of
their own fish and game laws. 39

For the complete failure of the states to give the
federal government the effective assistance for which it
had so often asked, their indifference to a long series of
appeals from Washington and their reluctance to reply
to these appeals with money for enforcement, the
Prohibition Bureau advanced an explanation in June,
1930. In a pamphlet bearing the seal of the Treasury

3r Message to Congress, December 8, 1925.
38 Chapter VIII,, supra.

^Financial Statistics of the States, 1927, Bureau of the Census,
pp. 80-83.

278 The Dry Decade

Department and entitled State Cooperation in the En-
forcement of National Prohibition Laws, the Bureau
offered this suggestion: "To an observer the causes of
this lack of cooperation are quite apparent. Unwhole
some influences are at work to prevent enforcement/' 40

It was a familiar theme, the theme of a conspiracy
to defeat the law, but in the case of the state legislatures
there were obvious influences with which it failed to
reckon. Merely as a matter of routine administration
there was an almost inevitable tendency on the part
of the states to slacken their efforts in the enforcement
of state prohibition laws when the federal government
entered the field of enforcement with its great prestige
and its enormous income.

Something of this sort had happened many times
before and in the case of many laws which antedated
prohibition. Left to their own devices, to work out for
themselves the solution of a problem which remained
within their borders, the states had been compelled to
exercise their own ingenuity and to accept responsibility
for their own decisions. Once the federal government
appeared upon the scene with its vast resources, it was
entirely in accord with precedent that the states should
feel, as Mr. Harding complained in 1923, that a kindly
deus ex machina had "actually taken over the real
responsibility." 41

Deeper down than this, however, lay the fact that
the states were now suddenly called upon to enforce a
law which in most cases had never had the sanction of
local legislation. If it is unquestionably true that forty-
five of the forty-eight state legislative bodies ratified the

Cooperation in the Enforcement of National Prohibition
Laws, United States Treasury Department, 1930, p. 7.
41 Address at Denver, June 25, 1923.

The Appeal to the States 279

Eighteenth Amendment during a period which began in
the tenth month of the war and ended in the third
month following the Armistice, it is also unquestionably
true that most of these states had never chosen down to
this point to experiment with anything as drastic as
bone-dry prohibition. The method which they had fol
lowed in dealing with the familiar problem of intoxicat
ing liquor had been to proceed cautiously in accordance
with local standards and customs which varied sub
stantially in different sections of the country.

If the legislatures of these states had subsequently
failed to contribute generously to the enforcement of
the Eighteenth Amendment, if they had been reluctant
to create militant enforcement agencies and hesitant in
resorting to their powers of taxation in order to maintain
these agencies, the possibility of some such result might
have been foreseen, in less extraordinary circumstances
than existed when the Eighteenth Amendment was
adopted, by those members of the House of Representa
tives who had so casually accepted the theory of willing
cooperation by the states.

If one fact was abundantly clear by 1930 it was the
failure of the federal government, after ten years of
earnest exhortation, to persuade the states to make a
realistic effort to enforce prohibition in the United
States. The states, with six exceptions, had been willing
to enact and to retain on their statute books a quantity
of legislation. They had not been willing to appropriate
more than a pittance for the enforcement of this legisla
tion.

Nevertheless, barren as were the efforts of the federal

280 The Dry Decade

government to enlist effective assistance by the states,
it was once more to the states that the Hoover Adminis
tration turned in 1930, confronted by a new develop
ment in the problem of enforcement, the emergence of
the illicit still as the dominant factor in production and
the necessity of creating an army of agents adequate to
police the country.

The budget for enforcement submitted to Congress
precisely at this time proposed merely a nominal in
crease in the appropriation of the Prohibition Bureau.
Nor did this budget stand alone as mute evidence that
the Administration believed the vast problem of sup
pressing illicit stills to be a problem beyond the respon
sibility of the federal government. A series of state
ments by various heads of departments in Washington
not only emphasized again, in midsummer, 1930, the
importance of effective state assistance, but now made
it impressively clear that without effective state assist
ance there would be no enforcement.

Attorney General Mitchell insisted that the federal
government could not possibly go into the states to
"create an enormous police force . . . such as would be
necessary to measurably enforce the law if the state
authorities did nothing." 42 The Prohibition Bureau ar
gued in its latest brochure that failure to enforce the law
could not "consistently be laid at the doors of the fed
eral authorities/' since, in the absence of state assist
ance, "the burden put upon the federal enforcement
machinery is too heavy/' 43 Assistant Attorney General
Youngquist frankly confessed that the existing federal
agencies of enforcement were "pitifully inadequate 35 for
^New York Times, June 27, 1930.

^State Cooperation in the Enforcement of National Prohibition
Law*) United States Treasury Department, 1930, pp. 2, 64.

The Appeal to the States 281

the task in hand, 44 though the government plainly had
no intention of increasing these agencies substantially.
To a fuller extent than ever before in a decade of ex
periment, the federal government abdicated responsi
bility for the single-handed enforcement of bone-dry
prohibition in the United States at the end of 1930. The
problem of enforcing bone-dry prohibition now re
turned to the states, the great bulk of which had never
had it before 1920 and certainly never enforced it once
they got it.

York Times, August 29, 1930.

CHAPTER XII
The Position in 1930

W IDESPREAD disregard of the law, indifference in the
state legislatures, and unwillingness on the part of the
federal government to accept the entire burden of en
forcement: these were the decisive factors at the end
of 1930. Where the law was liked, it was obeyed. Where
it was not liked, there was nothing to enforce it except
the same familiar sequence of ineffective drives, of ul
timatums with no force behind them, of mobilizations
and remobilizations of a small staff in a few strategic
spots, of padlocks picked after the key was turned, and
of light fines in the courts on bargain days.

There was no good reason to suppose that this pro
gram of enforcement could succeed in reaching its ob
jective unless some fundamental factor in the situation
changed : unless a larger part of the public began will
ingly to obey the law, or unless the states accepted a.new
view of their responsibilities, or unless the federal gov
ernment multiplied its own investment in the cause of
national prohibition.

Without a change in one or another of these funda
mental factors, the scope of the existing program of en
forcement was definitely limited. A new commissioner
of prohibition could reasonably hope to accomplish cer
tain reforms in the administration of the law by his own

282

The Position in 1930 283

agents. He could reasonably hope for more success than
his predecessors had achieved, in persuading his agents
to remain within the law and to avoid sensational meth
ods. He could reasonably hope to make the efforts of his
Bureau quiet and orderly, so quiet and so orderly as to
pass almost unnoticed. What he could not reasonably
hope to do was to shut off the sources of illegal liquor
with any machinery which Congress had provided for
that purpose.

This much was frankly and explicitly acknowledged
at the end of 1930 by officials in a position to speak for
the federal government.

When Assistant Attorney General Youngquist stated
that "the magnitude of the task" made the existing
program of enforcement "pitifully inadequate" to
achieve its goal, 1 he definitely dismissed the theory that
the law could be enforced by a series of patient blunders
into some ingenious and inexpensive solution of a stub
born problem.

When Attorney General Mitchell declared that under
existing conditions the question of how much enforce
ment each community would have was largely " a matter
of choice with the states" themselves, 2 he summarized
the unmistakable results of ten years* effort.

When the Prohibition Bureau insisted that without
effective state assistance "the burden put upon the
federal enforcement machinery is too heavy," 3 it brought
to a sober and matter-of-fact denouement the era of
resplendent promises inaugurated by Major Haynes in
1923 when he pronounced the law triumphant over all

x New York Times, August 29, 1930.
*Ibid., June 27, 1930.

*StaU Cooperation in the Enforcement of National Prohibition
Laws, United States Treasury Department, 1930, p. 64.

284 The Dry Decade

its problems and described the success of the Prohibition
Bureau as "nothing short of marvelous." 4

The day of miracles was over. Whatever else was pos
sible at the end of 1930, it was not possible to believe,
on the basis either of ten years' experience or of any
future which responsible officials now ventured to pre
dict, that the Prohibition Bureau could succeed in lifting
itself to the top of a long hill by a series of short tugs on
its own bootstraps.

At the end of 1930, five possible alternatives to the
existing situation had been proposed. These alternatives
were (i) willing compliance with the law on the part of
enough people to reduce the problem of enforcement to
manageable terms; (2) a realistic effort to enforce the
law in the face of whatever opposition it encountered;
(3) nullification of the law by deliberate failure to en
force it; (4) an effort to modify the law by some change
in the Volstead Act; (5) repeal of the law and restoration
of the problem to the states.

Because these alternatives existed, it did not follow
that any one of them would necessarily be chosen by the
American public within a reasonable period of years.
There were formidable difficulties inherent in all five
alternatives, from the enlistment of willing compliance
at one end to repeal of the Eighteenth Amendment at
the other. Unquestionably the easiest policy was to drift
along. The course of this experiment had not changed
substantially in a decade. Any change in its progress
now required a reconciliation of conflicting views and
a bold effort to overcome inertia.

What possibilities lay ahead, which one of these alter-
4 New York Times, December 24, 1923.

The Position in 1930 285

natives the American people would ultimately choose,
if, indeed, they should choose any, could not be foreseen
at the end of 1930. Ten years' experience made it possi
ble, however, to examine the problems involved in each
alternative and to measure the progress each had made.

The first possible alternative to the existing situation
was a fundamental change in public opinion and a will
ing compliance with the law on the part of people who
had hitherto disobeyed it.

Such a change, of course, would promptly dispose of
any problem confronting the federal government. As Mr.
Coolidge had said at a conference of Governors in 1923,
if the public would once stop patronizing bootleggers,
"the rest would be easy." 5 It was an obvious comment,
but it was still as much to the point in 1930 as it was in
1923. If the 98 per cent or the 99 per cent of the Ameri
can public which willingly obeys laws forbidding bur
glary, forgery, assault, and arson should begin willingly
to obey the law forbidding manufacture and sale of in
toxicating liquor, there would be no prohibition prob
lem. There would be no need to discuss enforcement
plans. There would be no debate over the respective
duties of the states and the federal government under
the concurrent clause.

Willing compliance with the law would promptly cut
the Gordian knot of prohibition. Three Presidents had
found it difficult, however, to persuade the public to
yield this compliance as a duty of good citizenship. Al
most in identical words Mr. Hoover was still repeating

6 Address in Washington, October 20, 1923. Chapter V, supra.

286 The Dry Decade

the early appeals and admonitions of his predecessors:
pleading for obedience to the law as "the first duty of a
citizen of a self-governing state " as Mr. Harding had
pleaded for obedience to the same law in 1920 as "a
fundamental principle of the American conscience "; de
nouncing the doctrine "that a citizen may choose what
law he will obey" as Mr. Coolidge had denounced the
doctrine that citizens may choose "to observe such parts
of the Constitution as they like while disregarding
others"; warning the country that the dogma of dis
obedience to a particular law was "destructive of the
very basis of protection of life, of homes and property"
as Mr. Coolidge had warned the country that this same
dogma would "break down all protection of life and
property and destroy the American system of ordered
liberty." .

Nothing that three Presidents had said, nothing that
had been said by many other men in public life, nothing
that had been argued in support of the theory that pro
hibition was like all other laws, equally binding upon the
conscience of the American people and entitled to equal
respect, had succeeded by the end of 1930 in persuading
a large part of the public to accept prohibition on this
basis.

Opinion among the friends of prohibition was divided.
There was one school which believed with Bishop Can
non that the time had come to employ sufficient force
"to convince the present rebels against prohibition
that the government will suppress rebellion wherever
found." 6 There was a second and more optimistic school
which continued to believe that desperate remedies were
not needed and that the American people would come in
time to accept the law of their own free will, either be-
6 New York Times, February 10, 1930.

The Position in 1930 287

cause they learned to appreciate its value or because
they consented to obey it as good citizens,

Force of circumstance had compelled this second
school to revise its estimate of time. In the early years
of the Eighteenth Amendment the advocates of na
tional prohibition had believed that the law would be
obeyed so promptly that a few million dollars would be
sufficient to enforce it. Gradually it had been necessary
to advance the date when such obedience might reason
ably be expected. In 1930 there were friends of prohibi
tion who believed that by 1933 or by 1935 or by 1940 the
public could be won over to the law; other friends who
looked ahead still further. "Prohibition will be enforced
if we stick to it long enough," said Mrs. Carrie Chapman
Catt. "Ten years is but a little time with 100,000 years
ahead." 7

To those Americans who disliked and distrusted pro
hibition, a decade seemed ample time in which to find
an answer to the question of how much support the
public would give the law. To the friends of prohibition
this test was unfair and a decade too brief for a real
answer.

The second possible alternative to a policy of drift
was a realistic effort to enforce the law in whatever sec
tion of the country it was disobeyed. In the opinion of
the Hoover Administration, as expressed at the end of
1930, such an effort could come only from the states
themselves.

If this was true, there was little difference between
the first alternative and the second. The states in which
the law was most widely disobeyed were obviously re-
York Times, January 25, 1930.

288 The Dry Decade

luctant to vote large funds with which to enforce it as
long as sentiment within these states was opposed to
strict enforcement. The problem of persuading the states
to enforce the law, therefore, was essentially the problem
of persuading the public to obey it. If a time came when
95 per cent or 85 per cent or even 75 per cent of the peo
ple in the large industrial states were won over to the
cause of national prohibition, the federal government
would no longer need militant assistance from the states.
Until such time arrived, appeals addressed to the legis
latures of these states were appeals addressed to them
to override the will of their constituents.

Owing to the presence of a dry majority in Congress,
the federal government was in a different position. With
a three-to-one vote or a two-to-one vote in favor of pro
hibition in both the Senate and the House, Congress had
ample power to initiate a genuine effort to enforce the
law at any time it chose to act. The starting point for
such an effort was plain enough. Above all else the law
needed men and money.

Over a period of ten years Congress had done its best
to escape this inescapable conclusion. The experiment
with national prohibition had begun with an appropria
tion demonstrably inadequate for the purpose of en
forcement. At the end of 1930 the chief spokesmen of
prohibition in the Senate and the House were still as
insistent as they had always been, that the right way
to enforce the law was not to appropriate money to en
force it but to write more laws to be enforced : laws mak
ing the purchaser of illegal liquor equally guilty with the
seller, laws adding new penalties to the penalties carried
in the Jones Act, laws making it mandatory upon the
courts to impose prison sentences on first offenders.

If ten years of prohibition had proved anything they

The Position in 1930 289

had proved the futility of such efforts. Nothing except
additional confusion and a larger measure of hypocrisy
had been achieved by adding more law to a law which
was not enforced. If the existing federal machinery of
enforcement was " pitifully inadequate" to enforce the
law against sellers of illegal liquor, it was still more piti
fully inadequate to enforce the law against the far more
numerous purchasers of illegal liquor. If federal attor
neys complained that juries would not convict under
the heavy penalties carried in the Jones Act, there was
no reason to suppose that they would convict more read
ily in case these penalties were increased. If the courts
had found it impossible to dispose of prohibition cases
by any other method than a series of bargain days, it
was idle to call upon the courts to send every prohibition
case to trial for the purpose of imposing mandatory
prison sentences on those who were guilty of violations.

As far as enforcement was concerned, every alterna
tive to the expenditure of ample funds had been tried not
once but many times by the end of 1930. Laws had been
added to existing laws, increasing the scope of the law
to be enforced. Regulations had succeeded regulations,
multiplying the responsibilities of a staff too small to
carry them successfully. Drives had followed drives, in a
long pursuit of the same familiar problem through a
series of reincarnations at widely scattered points. Re
organizations of the Prohibition Bureau in 1921 and
1925 and 1926 and 1927 and 1930 had started out afresh
five times to find some formula of enforcement suffi
ciently ingenious to compensate for a paralyzing lack of
men and money.

If the federal government wished to enforce prohibi
tion in the United States, ten years of experience plainly
showed the way to go about it. The first step was to

290 The Dry Decade

organize an army of agents adequate to police the coun
try to suppress illicit stills. The second step was to
equip these agents not with more law to enforce but with
more authority under existing law: with authority, as
the Wickersham commission had proposed, to initiate
padlock proceedings without personal service of a sub
poena on the owners of the property involved; with au
thority, as the Prohibition Bureau had proposed, to
compel business firms to open their books and to show
in detail what disposition they had made of any prod
ucts requiring the use of alcohol; with authority, as
General Andrews had proposed, to enter private homes
and to search private dwellings not only on ^warrants
charging sale of liquor but also on suspicion of its manu
facture for illegal use.

Whether the federal government would ultimately
provide the authority and the machinery needed to en
force the law remained to be disclosed. At the end of
1930 Congress was still unwilling to believe that its own
responsibilities went beyond halfway authority for the
Prohibition Bureau, a budget of $13,000,000 and a staff
of 2,300 field agents, each covering an average area of
1,300 square miles.

At the opposite extreme from the proposal for mili
tant enforcement of the law stood the proposal for its
deliberate nullification. This proposal was not advo
cated solely in irresponsible places or by persons in
irresponsible positions. There were intelligent and sober-
minded men to whom nullification as a political method
seemed both reasonable and opportune.

Without specifically recommending nullification in
the case of prohibition, Dr. Arthur Twining Hadley,

The Position in 1930 291

president emeritus of Yale University, described the
method in 1925 as a "safety valve which helps a self-
governing community avoid the alternative between
tyranny and revolution." 8 A similar opinion was ex
pressed in the Atlantic Monthly of October, 1926, by Mr.
Jerome D. Greene, who endorsed nullification of the
Eighteenth Amendment and the Volstead Act on the
ground that this was the traditional method by which
American communities asserted their will "against the
improper or unwelcome intrusion of governmental ac
tion in individual or local conduct." "This is not a coun
sel of lawlessness," insisted Mr. Greene, "for law rests
fundamentally on public opinion; and public opinion
can assert itself as effectively and rightfully in breaking
as in making a law, provided it is really public opinion
which is acting and not the capricious action of lawless-
minded individuals."

There were other men who shared these theories.
They argued that nullification was not revolution but a
method of reducing political tension when it became in
tolerable. They argued that majorities or large minori
ties had chosen many times to nullify laws which lacked
the sanction of public opinion in one section of the
country or another; that the Fugitive Slave Law had
been nullified by the people of the North; that the
Reconstruction Acts had been nullified by the people
of the South; that a large number of local laws, includ
ing many blue laws, had been nullified both in the North
and in the South, through a gradual loss of respect re
sulting from a change in local standards.

Moreover, while a policy of nullification undeniably
carried with it certain risks, these risks seemed to the

8 Law Making and Law Enforcement, Harper's Magazine,
November, 1925.

292 The Dry Decade

advocates of nullification to be negligible by comparison
with the risks involved in an effort to enforce by drastic
means a drastic law which ran counter to the will of
large numbers of people.

"The cost of trying to compel obedience to a law
which violates the consciences of a considerable minor
ity of the people or the traditional usages and privileges
of anything like a majority is usually too great/'
insisted Dr. Hadley. "The attempt to enforce ^the
Fugitive Slave Law converted the misunderstandings
between North and South into public menaces. The at
tempt to enforce the Reconstruction Acts not only re
sulted in abject failure but left a legacy of bitterness
behind it which lasted for many years. What has
proved true in large matters like these has generally
held good in small ones. The efforts to enforce legislation
regarding Sunday amusements, for instance, have
usually produced an amount of vexation and trouble far
out of proportion to any tangible results that could be
expected or achieved." 9

It was a consideration of these circumstances which
led Dr. Hadley to describe nullification as a safety
valve. Inevitably there were many men who took excep
tion to this theory. To Senator Borah, for example,
nullification was not a safety valve, not a method of
enabling self-governing communities to "avoid the
alternative between tyranny and revolution," but a
"slinking, silent, cowardly sapping of the very founda
tion of all order, all dignity, all government the
furtive, evasive betrayal of a nation," 10

There was a sharp difference of opinion here, but a

9 Law Making and Law Enforcement, Harper's Magazine,
November, 1925.
10 New York Tims, July 19, 1926.

The Position in 1930 293

difference of opinion over a philosophy of action rather
than a plan of action. No organized movement with
nullification as its objective had made its appearance in
American politics by the end of 1930. No league and
no association opposed to the Eighteenth Amendment
advocated deliberate disobedience to the law while it
remained in force. No bloc in Congress had proposed to
repeal the Volstead Act without substituting some other
legislation in its place.

Such nullification as had appeared during ten years
of prohibition consisted of individual disobedience of
the law and unwillingness on the part of Congress to
enforce it.

Like the proposal to nullify the law, the proposal to
modify it was based on the theory that the law could
not be successfully enforced in those districts in which it
was opposed to local habits and convictions. Nullifica
tion aimed to dispose of the problem of enforcement
in these districts by making the law a dead letter.
Modification proposed a change in the law on the theory
that the problem of enforcement would be simplified if
a larger portion of the public were persuaded to obey it.

In point of years the modification movement was
older than the law itself. Even before the Eighteenth
Amendment became effective and before the Volstead
Act was reported to the House of Representatives, the
American Federation of Labor petitioned Congress for
the enactment of such legislation as would exempt 2,75
per cent beer from the prohibition of intoxicating
beverages. 11 Congress replied to this petition by setting
the standard of intoxicating beverages at one half of one
u New York Times, June 12, 1919.

294 The Dry Decade

per cent, but the American Federation of Labor and a
minority of Congress itself continued to quarrel with the
logic of this definition.

Over a period of some eight years, in fact, an effort to
persuade Congress to reconsider its definition of in
toxicating beverages remained the chief objective of
such political opposition to prohibition as appeared in
the United States. A long series of possible alternatives
was proposed, debated and rejected.

In one session of Congress fifty-nine bills were intro
duced for the purpose of legalizing 2.75 per cent beer. 12
Other plans called for approval of beer of 4 per cent;
others for the approval of light wines. In 1926 Senator
Edge of New Jersey proposed that the Volstead Act be
amended simply by substituting the words "non-
intoxicating in fact" for the limitation of one half of
one per cent, arguing that this amendment would
"copy and assert the very words of the Constitution
itself, and its constitutionality therefore cannot be
questioned." 13 In 1928 Governor Smith of New York
advanced his plan for an amendment of the Volstead
Act which would give "a scientific definition of the
alcoholic content of an intoxicating beverage" and
simultaneously grant authority to each state "to fix
its own standard of alcoholic content, subject always
to the proviso that that standard could not exceed the
maximum fixed by Congress." 14

What is most significant about the movement in
favor of modification is that Governor Smith's proposal

^68th Congress, 1st Session.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 29.

14 Address accepting the Democratic nomination, August 22,

1928.

The Position in 1930 295

in 1928 was the last proposal made by an opponent of
national prohibition which aroused widespread discus
sion. When another plan for modification caught the
attention of the country it was a plan submitted not by
an opponent of prohibition but by a friend. This plan
was the proposal of Representative Fort of New Jersey
for an amendment of the Volstead Act which would
legalize liquor brewed in private homes, provided it was
non-intoxicating in fact: "To those who want beer and
light wines, I suggest that they forego the wish to buy
and be content with what they make/ 515

As far as modification was concerned, the field of
public interest had been preempted by midsummer of
1930 not by a wet but by a dry. This unexpected reversal
of roles was not accidental. It was an unmistakable sign
of a waning interest of the wets in the cause of modi
fication. Plans for a possible change in the Volstead Act
still appeared occasionally in the party platforms
adopted either by Republicans or by Democrats in
states where prohibition was not popular. On the whole,
however, these plans now seemed to arouse less en
thusiasm than at any other time in ten years of prohi
bition. Presumably there were two chief reasons for
this lack of interest,

In the first place, the argument made by Mr. Hughes
during the 1928 campaign against the legality of any
proposal to modify the Volstead Act had unquestionably
carried weight and succeeded in discouraging those more
skeptical wets who had always been inclined to doubt the
possibility of reconciling beer that was really beer and
wine that was really wine with the flat dictum of the
Eighteenth Amendment against "intoxicating liquors/'

^Congressional Record, 7ist Congress, 2d Session, pp. 2789-
2792.

296 The Dry Decade

In the second place, the cause of beer and wine had
been submerged by a much larger issue. It was no longer
a question of tempering discontent by wringing a little
comfort from the Volstead Act which occupied the at
tention of the opponents of prohibition, but the question
of restoring what they believed to be the fundamental
principle of the federal system of government, by re
dressing a lost balance of power between the national
government and the states.

So completely did this second question now over
shadow the first, and so substantially had the field of
controversy been broadened under the leadership of
such men as Mr. Dwight W. Morrow and such or
ganizations as the various bar associations of the larger
cities, that by the end of 1930 only the interjection
of some new and important factor seemed capable of
reviving interest in the cause of modification.

It was conceivable that such an agency as the Pre
sident's Commission on Law Enforcement might ulti
mately arrive at a proposal for modification and certain
in these circumstances that controversy over^the merits
of modification would begin afresh. Without some
thing of this sort to alter the march of events, how
ever, the opposition movement seemed destined to
sweep past its earlier objective and to focus its effort
not on modification but on repeal.

There was one point with respect to repeal on which
both the friends of prohibition and the opponents of
prohibition could agree. It was the unquestioned right
of every American to work for the repeal of any law of
which he disapproved. This method of procedure raised

The Position in 1930 297

none of the legal doubts inherent in modification and
none of the ethical doubts involved in nullification. It
was a plain proposal to take out of the Constitution
something which had been put into it. The friends of
prohibition acknowledged the legality of this effort but
believed it to be quixotic. " There is as much chance of
repealing the Eighteenth Amendment," insisted Senator
Sheppard in 1930, "as there is for a humming-bird to
fly to the planet Mars with the Washington Monument
tied to its tail/' 16

This confidence in the impregnability of the Eight
eenth Amendment rested not only upon the conviction
of such men as Senator Sheppard that a majority of
the American people favored national prohibition, but
also upon a belief that it was practically impossible
to repeal any part of the Constitution once it was
adopted.

In order to repeal the Eighteenth Amendment it
would be necessary first to adopt a resolution by a two
thirds vote of both Houses of Congress. Thirty-three
Senators out of 531 legislators in both Houses could
block repeal at the outset, A veto on repeal rested in 7
per cent of the representation at the capital. Assuming,
however, that the proposal for repeal could hurdle
Congress, it had then to be ratified by both Houses of
every legislature in thirty-six states. Seventy-two
legislative bodies must agree before there could be
repeal. Thirteen bodies could block repeal forever.
These thirteen bodies, rightly apportioned, could exist
in states containing approximately 5 per cent of the
country's population.

Mathematically, these statistics were a devastating

argument against the possibility of repeal. As a matter

16 Associated Press dispatch, Washington, September 24, 1930.

298 The Dry Decade

of everyday politics, they were formidable but not
conclusive.

Over a long period of time these figures ignored a
steady drift of population and political power to the
cities. Over a shorter period they ignored the psychology
of mass movement and the possibility, at least con
ceivable, of such a band-wagon rush on the part of the
state legislatures as had occurred in 1918 and 1919, but
in the opposite direction. They ignored the political
pressure which would presumably be brought to bear
on the less populous agrarian states, in the matter of
withholding subsidies from the Federal Treasury, if the
proponents of repeal succeeded in capturing a majority
of Congress. They ignored the question of whether thir
teen states with 5 per cent of the country's population,
or even twenty states with 15 per cent of its population,
would choose as a matter of sound political procedure to
subject the American system of government to a heavy
strain by exercising their veto power to block the will
of a great majority of the American people, if a time
came when a great majority was actually recorded in fa
vor of repeal. They ignored, finally, the possibility of any
change in attitude on the part of the friends of prohibi
tion: a change perhaps no more likely but quite as credi
ble as a change in attitude on the part of its opponents.

It is significant in this respect that most plans for
repeal proposed by the end of 1930 sought to assure the
friends of prohibition that repeal need not necessarily
mean either the return of the saloon to any part of the
United States or the loss of federal assistance to those
states which wished to prohibit intoxicating beverages
entirely.

The plan for repeal proposed by Governor Smith in
1928, simultaneously with his plan for modification, was

The Position in 1930 299

based on the Canadian system of sale by a public agency
in those states in which a majority of the electorate
approved such a policy by referendum vote. 17 The plan
for repeal submitted to the voters of New Jersey by Mr.
Morrow in 1930 was a plan for a new amendment which
would "restore to the states the power to determine
their policy toward the liquor traffic/' but simultane
ously "vest in the federal government power to give all
possible protection and assistance to those states that
desire complete prohibition against invasion from
states that do not." 18

Plainly the purpose of such plans was an effort to
find some ground on which a new agreement might be
reached. "I look forward to a time/' said Mr. Morrow in
the address in which he announced himself in favor of
repeal, "when the old leaders in the temperance move
ment, the churches and the schools and the social
workers, will appreciate that they have not reached a
final solution of a world-old problem by the present
Eighteenth Amendment. I look forward to the time
when the moral teachers of the country will realize that
in the battle for a great social reform there was wisdom
in the old system of experimenting in forty-eight
laboratories rather than in one." 19

Whether this was a reasonable hope only the future
could disclose. There were formidable difficulties in the
process of repealing or amending the Eighteenth
Amendment, It was an open question whether these
difficulties were more formidable or less formidable
than the difficulties involved in an effort to persuade the

17 Address accepting the Democratic nomination, August 22,

1928.
18 New York Times, May 16, 1930.

300 The Dry Decade

public to accept the law or the effort to persuade the
federal government to enforce it, or the effort to solve
an unsolved problem by any other means than by a
policy of drift.

Whatever possibilities the future held, one fact seemed
unmistakable. Until some settlement was reached which
disposed of this problem as effectively as the American
people could hope to dispose of it, by strict enforcement
or by repeal or by some other method, prohibition
seemed destined to remain a dominant and disturbing
issue. The policy of drift not only failed to enforce the
law. It left the raw edge of controversy uppermost.

Friends of the law denounced its enemies as rebels.
Opponents of the law insisted that its friends had be
trayed the Constitution. Presidents accused the state
governments of evading their responsibilities. State
governments defied successive Presidents by con
tinuing to vote inadequate appropriations for enforce
ment. The debate over the results which prohibition
had achieved ran on interminably and with mounting
bitterness on both sides. The blunt prediction before a
committee of the House of Representatives in 1930 that
a real effort to enforce the law would lead to open re
bellion matched the declaration of an ardent group of
prohibitionists that it was now "war to the knife and
knife to the hilt between the forces of sobriety and
orderly government on one hand and the forces of
liquor and lawlessness on the other." 20

H 'tarings of ike House Judiciary Committee, 71 st Congress,
2d Session, Serial 5, pt. 2, p. 200; resolution of the
Southern Baptist Convention, New Orleans, New York
Times, May 17, 1930.

The Position in 1930 301

There had been an early hope that the adoption of
the Eighteenth Amendment definitely answered the
question of regulating the use of intoxicating liquor in
so far as this question concerned the United States. No
doubt a large number of votes cast in favor of the
Amendment, both in Congress and in the state legisla
tures, had been predicated on this hope. Mr. Harding
had expressed the devout wish of many men in public
office to be done forever with a contentious issue when
he declared, during the debate on the Eighteenth
Amendment in the Senate, "I want to see this question
settled. I want to take it out of the halls of Congress and
refer it to the people, who must make the ultimate
decision/' 21

For a brief period of time circumstances favored the
theory that the question had actually been settled,
that it had at last been taken out of the halls of Con
gress, that the process of referring it to the state
legislatures during the war period was equivalent to
referring it "to the people, who must make the ultimate
decision/* The completeness of the dry victory crushed
all political opposition. The effort of Congress to
enforce the law primarily by making speeches about it
seemed adequate to the occasion. The experiment with
national prohibition was so new that the friends of
prohibition could afford to dismiss indulgently any
lack of enthusiasm on the part of the states.

At the end of a decade nothing remained of these
early hopes that the Eighteenth Amendment had
finally disposed of the question of intoxicating liquor,
either as an issue in politics or as a problem in admin
istration. On the contrary, this question was now more

^Congressional Record, 6$th Congress, 1st Session, p. 5648.
Cf. Chapter II, supra.

302 The Dry Decade

of an issue in politics than it had ever been: threatening
for the first time actually to split parties whereas it
had once merely vexed them; forcing an unwelcome con
troversy over the Volstead Act into the election of
judges, prosecuting attorneys, sheriffs, and even county
clerks; dominating political discussion in state and
municipal elections, once either party announced a
position which permitted the opposing party to raise
the issue of modification or repeal; involving municipal
administrations in a never-ending search for a work
able compromise between enforcement of the law and
observance of opinion in communities which did not
like it.

"I presume I am like the mayor of every other large
city in this country, hoping for a day to come when
our efforts may be given to something else than prohibi
tion/ 5 Mayor Dever of Chicago told a committee of
Congress in 1926. "I want to be relieved, if I can; I
have a human longing either to pass the burden of this
great subject on to somebody else, or else from the aid of
constructive legislation to be relieved of its annoyance.
It is an everyday yes, an hourly difficulty with us
in Chicago. The mayor of that city has great powers.
He is responsible for everything that occurs there. The
school board, the library board, the great hospitals,
the police, fire, everything is brought to the door of the
chief executive; and yet, notwithstanding the growing
need for attention to these highly important matters,
our attention is engrossed with this particular subject.
It is almost impossible to give anything approaching
good government along general lines, this one subject
presses so closely upon our attention. Even I, who have
tried to divest myself personally and as chief executive
of the subject, and not to allow myself to be embroiled

The Position in 1930 303

in it, find myself immersed in it, to the very great
damage of the city, from morning until night/' 22

The experience of Mayor Dever had been matched
in the experience of mayors of other cities who told
their stories to congressional committees, to the public
or to the press. It had been matched in the experience
of Governors, of state legislatures, of federal adminis
trations, of Congress and of the courts.

To the question of enacting or repealing state en
forcement codes, Governors and legislatures devoted a
vast amount of party strategy and political maneuver
ing. To the task of winning compliance with a law
which a large part of the public continued to disobey,
successive Presidents devoted an endless series of
messages and public statements. To the question of
controlling a traffic in intoxicating liquor which it had
sought to destroy in 1917, once and for all, Congress
now gave more time than ever. To the question of en
forcing prohibition in the courts the federal judiciary
devoted so much of its attention that two thirds of all
the criminal prosecutions within its jurisdiction were
now cases under a single statute: the National Pro
hibition Act,

Until this question which troubled city administra
tions, state administrations and federal administra
tions had been disposed of by one means or another,
by enforcement or by nullification, by observance or
by repeal, it was difficult to believe that prohibition
could be kept from monopolizing a large part of the
attention of the government and determining single-
handedly the fitness of many candidates for public
office.

^Hearings of a Subcommittee of the Senate Committee on the
Judiciary, 6gth Congress, 1st Session, p. 1378.

304 The Dry Decade

National prohibition by constitutional amendment
had begun as the golden dream of thousands of devoted
men and women. At the end of a decade it had pre
cipitated a struggle which was to test the political
wisdom of the American Republic.

APPENDICES

APPENDIX A
ADOPTION OF STATE PROHIBITION LAWS

(SOURCE : Editorial Research Reports, Washington, August 7, 1928)
(A) STATES ADOPTING LAWS BEFORE APRIL i, 1917

STATE PROHIBITION
ADOPTED

STATUTORY OR POPULAR VOTE ON PROHIBITION
CONSTITUTIONAL For Against Majority

Maine

1858..

statutory

....

....

**

1884

constitutional . . .

70,783

23,811

46,972

Kansas

1880..

constitutional . . .

92,302

84,304

7,998

North Dakota. . .

1889..

constitutional . . .

18,552

17,393

1,159

Georgia

1907..

statutory

Oklahoma. .....

1907..

constitutional . . .

130,361

112,258

18,103

Mississippi

1908. .

statutory

....

....

North Carolina. .

1908..

statutory

113,612

69,416

44,196

Tennessee

1909..

statutory

....

West Virginia. . .

1912. .

constitutional . . .

164,945

72,603

92,342

Virginia

1914..

statutory

94>25i

63,886

30,365

Oregon

1914..

constitutional . . .

136,842

100,362

36,480

Washington. ....

1914..

statutory

189,840

171,208

18,632

Colorado

1914..

constitutional . . .

129,589

118,017

11,572

Arizona

1914..

constitutional . . .

25>887

22,743

3,144

Alabama

1915-

statutory

Arkansas

1915..

statutory

....

....

Iowa

1915..

statutory

....

....

Idaho

1915-

statutory

....

1916 .

constitutional . . .

90,576

35,456

55,120

South Carolina . .

1915..

statutory

4i>735

16,809

24,926

Montana

1916. .

constitutional . . .

102,776

73,890

28,886

South Dakota . . .

1916. .

. . .constitutional . . .

65,334

53,36o

n,974

Michigan

1916. .

constitutional . . .

353*378

284,754

68,624

Nebraska

1916. .

constitutional . . .

146,574

117,132

29,442

Indiana

1917..

statutory

....

Utah

1917..

statutory

....

....

New Hampshire.

1917..

statutory

....

1,967,337 1,437,402 529,935

307

308 Appendices

(B) STATES ADOPTING LAWS AFTER APRIL i, 1917

STATE PROHIBITION
ADOPTED
New Mexico. . . . 1917. . . .
Utah 1918
Texas 1918. . . .

" TOTQ

STATUTORY OR
CONSTITUTIONAL
.... constitutional . . .
.... constitutional . . .
statutory

POPULAR VOTE ON PROHIBITION
For Against Majority
28,732 12,147 16,585
42,691 15*780 26,911

constitutional

159^23
463,654

31,439
21,851
13,248
208,905

140,099
437395

10,200
13,609
9,060
198,671

19,624

25,759
21,239
8,242

4,188
10,234

Ohio
Wyoming
Florida
Nevada
Kentucky

. . 1918
. . 1918
. . 1918
. . 1918
. . 1919- .

.... constitutional . . .
.... constitutional . . .
.... constitutional . . .
statutory. . .

.... constitutional . . .

Total popular vote, (A) and (B) .

970,243 837,461 132,782
2,274,863 662,717

APPENDIX B

SENATE VOTE ON THE EIGHTEENTH AMENDMENT

(SOURCE: Congressional Record, 6^th Congress, ist Session, p. $666)

FOR THE AMENDMENT 65

Borah, Idaho.
Brady, Idaho.
Colt, R. I.
Cummins, la.
Curtis, Kans.
Fernald, Me.
Frelinghuysen, N. J.
Gronna, N. D.
Hale, Me.
Harding, Ohio.

Republicans 29

Johnson, Cal.
Jones, Wash.
Kellogg, Minn.
Kenyon, la.
Knox, Pa.
LaFollette, Wise.
McCumber, S. D.
McNary, Ore.
New, Ind.
Nelson, Minn.

Norris, Neb.
Page, Vt.
Poindexter, Wash.
Sherman, 111.
Smith, Mich.
Smoot, Utah.
Sterling, S. D.
Sutherland, W. Va.
Watson, Ind.

Ashurst, Ariz.
Bankhead, Ala.
Beckham, Ky.
Chamberlain, Ore.
Fletcher, Fla.
Gore, Okla.
Hollis, N. H.
Jones, N. M.
Kendrick, Wyo.
King, Utah.
Kirby, Ark.
McKellar, Tenn.

Democrats 36

Martin, Va.
Myers, Mont.
Newlands, Nev.
Overman, N. C.
Owen, Okla.
Pittman, Nev.
Ransdell, La.
Robinson, Ark.
Saulsbury, Del.
Shafroth, Col.
Sheppard, Tex.
Shields, Tenn.
309

Simmons, N. C.
Smith, Ariz.
Smith, Ga.
Smith, S. C.
Stone, Mo.
Swanson, Va.
Thompson, Kans.
Trammel, Fla.
Vardaman, Miss.
Walsh, Mont.
Williams, Miss.
Wolcott, Del.

3io

Appendices

AGAINST THE AMENDMENT 20

Brandegee, Conn,
Calder, N. Y.
France, Md.

Republicans 8

Lodge, Mass.
Penrose, Pa.
Wadsworth, N. Y.

Warren, Wyo.
Weeks, Mass.

Broussard, La.
Culberson, Tex.
Gerry, R. I.
Hardwick, Ga.

Democrats 1 2

Hitchcock, Neb.
Husting, Wise.
James, Ky.
Lewis, 111.

Phelan, Cal.
Pomerene, Ohio.
Reed, Mo.
Underwood, Ala.

PAIRS OF ABSENTEES

Goff (W. Va.) and Townsend (Mich.), Republicans, for, with

Tillman (S. C.) Democrat, against.
Gallinger (N. H.), Republican, and Johnson (S. D.), Democrat,

for, with Hughes (N. J.)> Democrat, against.
Fall (N. M.)s Republican, and Thomas (Col.), Democrat, for, with

McLean (Conn.), Republican, against.

APPENDIX C

HOUSE VOTE ON THE EIGHTEENTH AMENDMENT

(SOURCE: Congressional Record, 6^th Congress, 2d Session, p. 460)
FOR THE AMENDMENT 282

Anderson, Minn.
Anthony, Kans.
Austin, Tenn.
Bland, Ind.
Bowers, W. Va.
Browne, Wise.
Browning, N. J.
Burroughs, N. H.
Butler, Pa.
Campbell, Kans.
Cannon, 111.
Carter, Mass,
Cooper, Ohio.
Cooper, W. Va.
Cooper, Wise.
Copley, 111.
Costello, Pa.
Cramton, Mich.
Currie, Mich.
Dale, Vt.
Dallinger, Mass.
Darrow, Pa.
Dempsey, N. Y.
Denison, 111.
Dillon, S. D.
Dowell, la.

Republicans 13 7

Dunn, N. Y.
Elliott, Ind.
Ellsworth, Minn.
Elston, Cal.
Emerson, Ohio.
Esch, Wise.
Fairfield, Ind.
Farr, Pa.
Fess, Ohio.
Focht, Pa.
Fordney, Mich.
Foss, 111.
Frear, Wise.
French, Ida.
Fuller, 111.
Good, la.
Goodall, Me.
Gould, N. Y.
Graham, 111.
Green, la.
Griest, Pa.
Hadley, Wash.
Hamilton, Mich.
Hamilton, N. Y.
Haugen, la.
Hawley, Ore.
311

Hersey, Me.
Hicks, N. Y.
Hollingsworth, O.
Hutchinson, N. J.
Ireland, 111.
James, Mich.
Johnson, S. D.
Johnson, Wash.
Kearns, O.
Kelley, Mich.
Kennedy, la.
Kiess, Pa.
King, 111.
Kinkaid, Neb.
Knutson, Minn.
Kraus, Ind.
Kreider, Pa.
LaFollette, Wash.
Langley, Ky.
Lenroot, Wise.
Little, Kans.
Lundeen, Minn.
McCormick, 111.
McCulloch, O.
McFadden, Pa.
McKensie, 111.

312

McKinley, 111.
McLaughlin, Mich.
Mapes, Mich.
Miller, Minn.
Mondell, Wyo.
Moores, Ind.
Morgan, Okla.
Mott, N. Y.
Nelson, Wise.
Norton, N. D.
Osborne, Cal.
Paige, Mass.
Parker, N. Y.
Peters, Me.
Platt, N. Y.
Powers, Ky.
Pratt, N. Y.
Purnell, Ind.
Ramseyer, la.
Rankin, Mont.

Appendices
Republicans Continued.

Reavis, Neb.
Reed, W. Va.
Robbins, Pa.
Rose, Pa.
Rowe, N. Y.
Rowland, Pa.
Sanders, Ind.
Sanders, N. Y.
Scott, la.
Scott, Mich.
Sells, Tenn.
Sinnott, Ore.
Slemp, Va.
Sloan, Neb.
Smith, Ida.
Smith, Mich.
Snell, N.Y.
Steenerson, Minn.
Sterling, 111.
Stiness, R. L

Strong, Pa.
Sweet, la.
Switzer, O.
Temple, Pa.
Timberlake, Col.
Towner, la.
Treadway, Mass.
Vestal, Ind.
Volstead, Minn.
Wason, N. H.
Wheeler, 111.
White, Me.
Williams, 111.
Wilson, 111.
Wood, Ind.
Woods, la.
Woodyard, W. Va.
Young, N. D.
Zihlman, Md.

Adamson, Ga.
Alexander, Mo.
Almon, Ala.
Ashbrook, Ohio.
Aswell, La.
Ayers, Kans.
Bankhead, Ala.
Barkley, Ky.
Barnhart, Ind.
Beakes, Mich.
Bell, Ga.
Beshlin, Pa.
Black, Tex.
Booher, Mo.
Borland, Mo.
Brand, Ga.
Brodbeck, Pa.
Brumbaugh, O.
Burnett, Ala.
Byrnes, S. C.
Byrns, Tenn.
Candler, Miss.

Democrats 141

Caraway, Ark.
Carlin, Va.
Carter, Okla.
Clark, Fla.
Claypool, O.
Collier, Miss.
Connally, Tex,
Connelly, Kans.
Cox, Ind.
Crisp, Ga.
Decker, Mo.
Dentpn, Ind.
Dickinson, Mo.
Dill, Wash.
Dixon, Ind.
Doolittle, Kans.
Doughton, N. C.
Drane, Fla.
Evans, Mont.
Ferris, Okla.
Fields, Ky.
Fisher, Tenn.

Flood, Va.
Foster, 111.
Gandy, S. D.
Garrett, Tenn.
Garrett, Tex.
Glass, Va.
Godwin, N. C.
Gregg, Tex.
Hamlin, Mo.
Harrison, Miss.
Harrison, Va.
Hastings, Okla.
Hayden, Ariz.
Helm, Ky.
Helvering, Kans.
Hensley, Mo.
Hilliard, Col.
Holland, Va.
Hood, N. C.
Houston, Tenn.
Howard, Ga.
Hull, Tenn.

Humphreys, Miss.
"acoway, Ark.

ohnson, Ky.

ones, Tex.

ones, Va.
Seating, Col.
Kehoe, Fla.
Kelly, Pa.
Kettner, Cal.
Kincheloe, Ky.
Kitchin, N. C.
Larsen, Ga.
Lee, Ga.
Lever, S. C.
Littlepage, W. Va.
Lobeck, Neb.
Lunn, N. Y.
McClintic, O.
McKeown, Okla.
Mays, Utah.
Montague, Va.
Moon, Tenn.
Nicholls, S. C.
Oldfield, Ark.
Oliver, Ala.

Appendices

Democrats Continued.

Olney, Mass.
Overstreet, Ga.
Padgett, Tenn.
Park, Ga.
Polk, DeL
Price, Md.
Quin, Miss.
Ragsdale, S. C.
Rainey, 111.
Raker, Cal.
Rayburn, Tex.
Robinson, N. C.
Romjue, Mo.
Rubey, Mo.
Rucker, Mo.
Russell, Mo.
Sanders, La.
Saunders, Va.
Sears, Fla.
Shackleford, Mo.
Shallenberger, Neb.
Shouse, Kans.
Sims, Tenn.
Sisson, Miss.
Snook, 0.

313

Steagall, Ala.
Stedman, N. C.
Stephens, Miss.
Sterling, Pa.
Stevenson, S. C.
Sumners, Tex.
Taylor, Ark.
Thomas, Ky.
Thompson, Okla.
Tillman, Ark.
Venable, Miss.
Vinson, Ga.
Walker, Ga.
Walton, N. M.
Watkins, La.
Watson, Va.
Weaver, N. C.
Webb, N. C.
Welling, Utah.
Whaley, S. C.
White, Ohio.
Wilson, La.
Wingo, Ark.
Wise, Ga.
Young, Tex.

Independents 4

Baer, N. D. (Non-Partisan) Fuller, Mass. (Independent)
dall, Cal. (Prohibitionist) Schall, Minn. (Progressive).

AGAINST THE AMENDMENT 128

Ran-

Bacharach, N. J.
Britten, 111.
Gary, Wise.
Chandler, N. Y.
Clark, Pa.
Classon, Wise.
Crago, Pa.
Davidson, Wise.
Davis, Minn.
Drukker, N. J.
Dyer, Mo.

Republicans 62

Edmonds, Pa.
Fairchild, B., N. Y.
Francis, N. Y.
Freeman, Conn.
Garland, Pa.
Gillett, Mass.
Glynn, Conn.
Graham, Pa.
Gray, N. J.
Greene, Mass.
Greene, Vt,

Haskell, N. Y.
Heaton, Pa.
Hull, la.
Juul, 111.
Kahn, Cal.
Kennedy, R. I.
Lehlbach, N. J.
Longworth, O.
Lufkin, Mass.
McArthur, Ore.
McLaughlin, Pa.

3 14

Appendices

Republicans Continued.

Madden, 111.
Magee, N. Y.
Meeker, Mo.
Merritt, Conn.
Moore, Pa.
Morin, Pa.
Mudd, Md.
Nichols, Mich.
Nolan, Cal.

Porter, Pa. Templeton, Pa.
Ramsey, N. J. Tilson, Conn.
Roberts, Nev. X^ 6 ? Pa 7 -
Rodenburg, 111. Voight, Wise.
Sanford,N.Y. Wa dow N. Y.
Scott, Pa. Walsh, M ass.
Siegel,N.Y. Ward, N Y.
Snyder, N. Y. Watson, Pa
Stafford, Wise. Wmslow, Mass,

Parker, N. J.

Swift, N. Y.

Democrats 64

Blackmon, Ala.
Bruckner, N. Y.
Buchanan, Tex.
Caldwell, N. Y.
Campbell, Pa.
Cantrill, Ky.
Carew, N. Y.
Church, Cal.
Coady, Md.
Grosser, O.
Dale, N. Y.
Dent, Ala.
Dewalt, Pa.
Dies, Tex.
Dominick, S. C.
Dooling, N. Y.
Doremus, Mich.
Dupre, La.
Eagan, N. J.
Estopinal, La.
Fitzgerald, N. Y.
Flynn, N. Y.

Gallagher, N. Y.
Card, Ohio.
Garner, Tex.
Gordon, Ohio.
Gray, Ala.
Griffin, N. Y.
Hamill, N. J.
Hardy, Tex.
Heflin, Ala.
Huddleston, Ala.
Hulbert, N. Y.
Igoe, Mo.
Key, Ohio.
Lazaro, La.
Lea, Cal.
Lesher, Pa.
Linthicum, Md.
Lonergan, Conn.
McAndrews, 111.
McLemore,*Tex.
Maher, N. Y.
Mansfield, Tex.

Oliver, N. Y.
O'Shaunessy, R. I.
Overmyer, Ohio.
Phelan, Mass.
Pou, N. C.
Riordan, N. Y.
Rouse, Ky.
Sabath, 111.
Sherley, Ky.
Sherwood, 0.
Slayden, Tex.
Small, N. C.
Smith, C., N. Y.
Smith, T.,N.Y.
Steele, Pa.
Sullivan, N. Y.
Talbott, Md.
Van Dyke, Minn.
Welty, Ohio.
Wilson, Tex.

Independents 2
London, N. Y. (Socialist) Martin, La. (Progressive)

PAIRS OF ABSENTEES
Stephens, (Neb.), and Neeley, (W. Va.)> for the Amendment, with

Gallivan, Mass., against.
Goodwin, (Ark.), and Miller, (Wash.), for the Amendment, with

Tague, Mass., against.
Taylor, (Col), and G. W. Fairchild, (N. Y.), for the Amendment,

with Curry, Cal., against.

APPENDIX D

RATIFICATION OF THE EIGHTEENTH AMENDMENT
BY THE STATES

(SOURCE: Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. /)

C TATP

SENATI

E

Hous

B

Date

Vote

Date

Vote

I. JIVIississippi. .

Jan. 8, 1918

2Q tO C

Jan 8 1918

O3 tO 1

2. Virginia

Jan. 10, 1918

30 to 8

Jan. n, 1918

yj iu j

84 tO 13

3. Kentucky.

Jan. 14, 1918

27 tO C

Jan 14, 1918

67 to 1 1

4. South Carolina.. . .

Jan. 1 8, 1918

34. tO 6

Jan 23 iQi8

66 to 28

5. North Dakota

Jan. 25, 1918

43 tO 2

Jan. 24. iQi8

96 to 10

6. .Maryland

Feb. 13, 1918

18 to 7

Feb 8 1918

c8 to 36

7. Montana

Feb. 16, 1918

34. tO 2

Feb. 18, 1918

7Q tO 7

8. Texas

Feb. 28, 1918

1C tO 7

Mar i, 1918

73 tO 36

o. Delaware. . . .

Mar. 18, 1918

13 tO 3

M!ar 14* 1918

27 to 6

10. South Dakota 1

Mar. 19, 1918

43 tO O

Mar. 20, 1918

86 to o

ii. Massachusetts. . .

Apr. 2, 1918

27 tO 12

]\ar 26* iQi8

IAC tO QI

12. Arizona. . . ,

May 23, 1918

18 to o

Mav 24. 1018

J-4i> tu yj.
2Q tO 3

13. Georgia

June 26, 1918

3C tO 2

June 26> 1918

129 tO 24

14. Louisiana

Aug. 6, 1918

21 tO 2O

Aug 8) 1918

6*Q tO 41

15. Florida

Nov. 27, 1918

25 tO 2

Nov. 27, 1918

61 to 3

16. Michigan 2

Jan. 2* IQIQ

30 to o

Jan 2. IQIQ

88 to 3

17 Ohio .

Jan 7. IQIQ

2O tO 12

Jan 7 IQIQ

8c to 20

18. Oklahoma

Jan. 7. IQIQ

4.3 tO O

Jan. 7. IQIQ

90 to 8

19 Maine. .

Tan 8. IQIQ

29 to o

Jan 8 IQIQ

1 2O to 22

2O. Idaho 1

Tan. 8, IQIQ

38 to o

Tan. 7. IQIQ

62 to o

21. West Virginia. .

Tan. 8. IQIQ

26 to o

Jan. o. IQIQ

81 to 3

22 ^Washington 1 .

Tan 13. IQIO

42 to O

Jan 13. IQIQ

O3 t!O O

23. Tennessee

Tan. 8. IQIQ

28 tO 2

Tan. 13. IQIQ

bo tu u

82 tO 2

^Unanimous in both Houses.

8 Repassed in House to correct error, January, 1923.

315

316

Appendices
APPENDIX D Continued.

STATE

SENATE

HOUSE

Date

Vote

Date

Vote

24. California

Jan. 10, 1919
Jan. 13, 1919
Jan. 8, 1919
Jan. 14, 1919
Jan. 10, 1919
Jan. 14, 1919
Jan. 14, 1919
Jan. 15, 1919
Jan. 15, 1919
Jan. 15, 1919
Jan. 15, 1919
Jan. 15, 1919
Jan. 14, 1919
Jan. 16, 1919
Jan. 16, 1919
Jan. 16, 1919
Jan. 16, 1919
Jan. 20, 1919
Jan. 21, 1919
Jan. 16, 1919
Jan. 29, 1919
Feb. 25, 1919
Mar. 7, 1922

25 to 14
41 to 6
30 to 15
30 to o
49 to o
23 to ii
39 to o
30 to o
42 to 7
16 to o
34 to i
19 to 4
31 to i

22 tO 10

25 to o
19 to ii
48 to ii
12 to 4
14 to i
24 to 4
27 to 24
29 to 16

12 tO 2

Jan. 13, 1919
Jan. 14, 1919
Jan. 14, 1919
Jan. 13, 1919
Jan. 14, 1919
Jan. 14, 1919
Jan. 14, 1919
Jan. 14, 1919
Jan. 15, 1919
Jan. 14, 1919
Jan. 15, 1919
Jan. 15, 1919
Jan. 16, 1919
Jan. 16, 1919
Jan. 16, 1919
Jan. 17, 1919
Jan. 17, 1919
Jan. 16, 1919
Jan. 20, 1919
Jan. 29, 1919
Jan. 23, 1919
Feb. 4, 1919
Mar. 9, 1922

48 to 28
87 to ii
84 to 66
94 to 2
94 to 10
64 to 34
121 to o
S3 to 3
86 to 13
43 to o

60 tO 2
222 tO 131

98 to o
104 to 36
S3 to o
58 to 39
92 to 36
45 to i
34 to 3
155 to 58
81 to 66
1 10 to 93
33 to 24

25. Indiana ...

26. Illinois.

27. Arkansas

28. North Carolina. . . .

29 Alabama

30. Kansas 1

3 1 . Oregon

. Utah 1

34 Colorado. . . .

35. New Hampshire.. . . .

36. Nebraska

37. IVlissouri

38. Wyoming 1

39. Wisconsin

40. ^Minnesota. . .

41. New Mexico

42. Nevada.

43. Vermont

44, N^w York- -

45. Pennsylvania

46. New Jersey

Unanimous in both Houses.

Total Senate vote, 1,310 for, to 237 against.
Total House vote, 3,782 for, to 1,035 against.

APPENDIX E

THE NATIONAL PROHIBITION ACT

The National Prohibition Act, popularly known as the Volstead
Act, consists of three Titles: Title I. To provide for the enforce
ment of War Prohibition. Title II. Prohibition of Intoxicating
Beverages; and Title III. Industrial Alcohol.

Of these three Titles, the first is no longer effective and the
third is concerned with technical provisions for users of industrial
alcohol. Title II contains the general provisions for the enforce
ment of constitutional prohibition. The text of this title follows.

TITLE II.
PROHIBITION OF INTOXICATING BEVERAGES.

SEC. i. When used in Title II, and Title III. of this act (i) the word "liquor"
or the phrase "intoxicating liquor" shall be construed to include alcohol, brandy,
whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spiritu
ous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated,
proprietary, patented, or not, and by whatever name called, containing one-half
of i per centum or more of alcohol by volume which are fit for use for beverage
purposes: Provided, That the foregoing definition shall not extend to dealcoholized
wine nor to any beverage or liquid produced by the process by which beer, ale,
porter, or wine is produced, if it contains less than one-half of I per centum of al
cohol by volume, and is made as prescribed in Section 37 of this title, and is other
wise denominated than as beer, ale, or porter, and is contained and sold in, or from,
such sealed and labeled bottles, casks, or containers as the Commissioner may by
regulation prescribe.

(2) The word "person" shall mean and include natural persons, associations,
co-partnerships, and corporations.

(3) The word "commissioner" shall mean Commissioner of Internal Revenue.

(4) The term "application" shall mean a formal written request supported by a
verified statement of facts showing that the Commissioner may grant the request.

(5) The term "permit" shall mean a formal written authorization by the Com
missioner setting forth specifically therein the things that are authorized.

317

318 Appendices

(6) The term "bond" shall mean an obligation authorized or required by or
under this act or any regulation, executed in such form and for such a penal sum
as may be required by a court, the Commissioner, or prescribed by regulation.

(7) The term "regulation" shall mean any regulation prescribed by the Com
missioner with the approval of the Secretary of the Treasury for carrying out the
provisions of this act, and the Commissioner is authorized to make such regulations.

Any act authorized to be done by the Commissioner may be performed by any
assistant or agent designated by him for that purpose. Records required to be filed
with the Commissioner may be filed with an Assistant Commissioner or other
person designated by the Commissioner to receive such records.

SEC. 2. The Commissioner of Internal Revenue, his assistants, agents, and in
spectors shall investigate and report violations of this act to the United States
Attorney for the district in which committed, who is hereby charged with the duty
of prosecuting the offenders, subject to the direction of the Attorney-General,
as in the case of other offenses against the laws of the United States; and such
Commissioner of Internal Revenue, his assistants, agents, and inspectors may
swear out warrants before United States Commissioners or other officers or courts
authorized to issue the same for the apprehension of such offenders, and may,
subject to the control of the said United States Attorney, conduct the prosecution
at the committing trial for the purpose of having the offenders held for the action
of a Grand Jury. Section 1014, of the Revised Statutes of the United States, is
hereby made applicable in the enforcement of this act. Officers mentioned in said
Section 1014 are authorized to issue search warrants under the limitations provided
in Title XL of the act approved June 15, 1917 (Fortieth Statutes at Large, Page
217, et seq.).

SEC. 3. No person shall on or after the date when the Eighteenth Amendment to
the Constitution of the United States goes into effect, manufacture, sell, barter,
transport, import, export, deliver, furnish or possess any intoxicating liquor except
as authorized in this act, and all the provisions of this act shall be liberally con
strued to the end that the use of intoxicating liquor as a beverage may be prevented.

Liquor for non-beverage purposes and wine for sacramental purposes may be
manufactured, purchased, sold, bartered, transported, imported, exported, deliv
ered, furnished, and possessed, but only as herein provided, and the Commissioner
may, upon application, issue permits therefor: Provided) That nothing in this act
shall prohibit the purchase and sale of warehouse receipts covering distilled spirits
on deposit in Government bonded warehouses, and no special tax liability shall
attach to the business of purchasing and selling such warehouse receipts.

SEC. 4. The articles enumerated in this section shall not, after having been manu
factured and prepared for the market, be subject to the provisions of this act if
they correspond with the following descriptions and limitations, namely:

(a) Denatured alcohol or denatured rum produced and used as provided by laws
and regulations now or hereafter in force.

(b) Medicinal preparations manufactured in accordance with formulas pre
scribed by the United States Pharmacopoeia, National Formulary, or the American
Institute of Homeopathy that are unfit for use for beverage purposes.

(c) Patented, patent, and proprietary medicines that are unfit for use for beverage
purposes.

(d) Toilet, medicinal, and antiseptic preparations and solutions that are unfit for
use for beverage purposes.

(e) Flavoring extracts and syrups that are unfit for use as a beverage, or for in
toxicating beverage purposes.

(0 Vinegar and preserved sweet cider.

A person who manufactures any of the articles mentioned in this section may

Appendices 319

purchase and possess liquor for that purpose, but he shall secure permits to manu
facture such articles and to purchase such liquor, give the bonds, keep the records,
and make the reports specified in this act and as directed by the Commissioner.
No such manufacturer shall sell, use, or dispose of any liquor otherwise than as an
ingredient of the articles authorized to be manufactured therefrom. No more
alcohol shall be used in the manufacture of any extract, syrup, or the articles named
in paragraphs b, c, and d of this section, which may be used for beverage purposes
than the quantity necessary for extraction or solution of the elements contained
therein and for the preservation of the article.

Any person who shall knowingly sell any of the articles mentioned in Paragraphs
a, b, c, and d of this section for beverage purposes, or any extract or syrup for
intoxicating beverage purposes, or who shall sell any of the same under cir
cumstances from which the seller might reasonably deduce the intention of the
purchaser to use them for such purposes, or shall sell any beverage containing one-
half of i per centum or more of alcohol by volume in which any extract, syrup, or
other article is used as an ingredient, shall be subject to the penalties provided in
Section 29 of this Title. If the Commissioner shall find after notice and hearing as
provided for in Section 5 of this Title, that any person has sold any flavoring ex
tract, syrup, or beverage in violation of this paragraph, he shall notify such person,
and any known principal for whom the sale was made, to desist from selling such
article; and it shall thereupon be unlawful for a period of one year thereafter for
any person so notified to sell any such extract, syrup, or beverage without making
an application for, giving a bond, and obtaining a permit so to do, which permit
may be issued upon such conditions as the Commissioner may deem necessary to
prevent such illegal sales, and in addition the Commissioner shall require a record
and report of sales.

SEC. 5. Whenever the Commissioner has reason to believe that any article men
tioned in Section 4 does not correspond with the descriptions and limitations
therein provided he shall cause an analysis of said article to be made, and if, upon
such analysis, the Commissioner shall find that said article does not so correspond,
he shall give not less than fifteen days' notice in writing to the person who is the
manufacturer thereof to show cause why said article should not be dealt with as
an intoxicating liquor, such notice to be served personally or by registered mail, as
the Commissioner may determine, and shall specify the time when, the place where,
and the name of the agent or official before whom such person is required to appear.

If the manufacturer of said article fails to show to the satisfaction of the Com
missioner that the article corresponds to the descriptions and limitations provided
in Section 4 of this Title, his permit to manufacture and sell such article shall be
revoked. The manufacturer may by appropriate proceeding in a court of equity
have the action of the Commissioner reviewed, and the court may affirm, modify,
or reverse the finding of the Commissioner as the facts and law of the case may
warrant, and during the pendency of such proceedings may restrain the manufac
ture, sale, or other disposition of such article.

SEC. 6. No one shall manufacture, sell, purchase, transport, or prescribe any
liquor without first obtaining a permit from the Commissioner so to do, except that
a person may, without a permit, purchase and use liquor for medicinal purposes
when prescribed by a physician as herein provided, and except that any person
who in the opinion of the Commissioner is conducting a bona fide hospital or sana
torium engaged in the treatment of persons suffering from alcoholism, may, under
such rules, regulations, and conditions as the Commissioner shall prescribe, pur
chase, and use, in accordance with the methods in use in such institution, liquor,
to be administered to the patients of such institution under the direction of a duly
qualified physician employed by such institution.

32O Appendices

All permits to manufacture, prescribe, sell, or transport liquor, may be issued
for one year, and shall expire on the 3ist day of December next succeeding the
issuance thereof: Provided, That the Commissioner may without formal applica
tion or new bond extend any permit granted under this act or laws now in force
after August 31 in any year to December 31 of the succeeding year: Provided
further > That permits to purchase liquor for the purpose of manufacturing or selling
as provided in this act shall not be in force to exceed ninety days from the day of
issuance. A permit to purchase liquor for any other purpose shall not be in force
to exceed thirty days. Permits to purchase liquor shall specify the quantity and
kind to be purchased and the purpose for which it is to be used. No permit shall be
issued to any person who within one year prior to the application therefor or issu
ance thereof shall have violated the terms of any permit issued under this Title
or any law of the United States or of any State regulating traffic in liquor. No
permit shall be issued to any one to sell liquor at retail, unless the sale is to be made
through a pharmacist designated in the permit and duly licensed under the laws
of his State to compound and dispense medicine prescribed by a duly licensed
physician. No one shall be given a permit to prescribe liquor unless he is a physician
duly licensed to practice medicine and actively engaged in the practice of such
profession. Every permit shall be in writing, dated when issued, and signed by the
Commissioner or his authorized agent. It shall give the name and address of the
person to whom it is issued and shall designate and limit the acts that are permitted
and the time when and place where such acts may be performed. No permit shall
be issued until a verified, written application shall have been made therefor, setting
forth the qualification of the applicant and the purpose for which the liquor is to
be used.

The Commissioner may prescribe the form of all permits and applications and
the facts to be set forth therein. Before any permit is granted the Commissioner
may require a bond in such form and amount as he may prescribe to insure com
pliance with the terms of the permit and the provisions of this title. In the event
of the refusal by the Commissioner of any application for a permit, the applicant
may have a review of his decision before a court of equity in the manner provided
in Section 5 hereof.

Nothing in this title shall be held to apply to the manufacture, sale, transporta
tion, importation, possession, or distribution of wine for sacramental purposes, or
like religious rites, except Section 6 (save as the same requires a permit to purchase)
and Section 10 hereof, and the provisions of this act prescribing penalties for the
violation of either of said sections. No person to whom a permit may be issued
to manufacture, transport, import, or sell wines for sacramental purposes or like
religious rites shall sell, barter, exchange, or furnish any such to any person not a
rabbi, minister of the gospel, priest, or an officer duly authorized for the purpose
by any church or congregation, nor to any such except upon an application duly
subscribed by him, which application, authenticated as regulations may prescribe,
shall be filed and preserved by the seller. The head of any conference or diocese or
other ecclesiastical jurisdiction may designate any rabbi, minister, or priest to
supervise the manufacture of wine to be used for the purposes and rites in this
section mentioned, and the person so designated may, in the discretion of the
Commissioner, be granted a permit to supervise such manufacture.

SEC. 7. No one but a physician holding a permit to prescribe liquor shall issue
any prescription for liquor. And no physician shall prescribe liquor unless after
careful physical examination of the person for whose use such prescription is sought,
or if such examination is found impracticable, then upon the best information ob
tainable, he in good faith believes that the use of such liquor as a medicine by such
person is necessary and will afford relief to him from some known ailment, Not

Appendices 321

more than a pint of spirituous liquor to be taken internally shall be prescribed for
use by the same person within any period of ten days and no prescription shall be
filled more than once. Any pharmacist filing a prescription shall at the rime in
dorse upon it over his own signature the word " canceled," together with the date
when the liquor was delivered, and then make the same a part of the record that he
is required to keep as herein provided.

Every physician who issues a prescription for liquor shall keep a record, alpha
betically arranged in a book prescribed by the Commissioner, which shall show the
date of issue, amount prescribed, to whom issued, the purpose or ailment for which
it is to be used and directions for use, stating the amount and frequency of the dose.

SEC. 8. The Commissioner shall cause to be printed blanks for the prescriptions
herein required, and he shall furnish the same, free of cost, to physicians holding
permits to prescribe. The prescription blanks shall be printed in book form and
shall be numbered consecutively from one to one hundred, and each book shall be
given a number, and the stubs in each book shall carry the same numbers as and
be copies of the prescriptions. The books containing such stubs shall be returned
to the Commissioner when the prescription blanks have been used, or sooner if
directed by the Commissioner. All unused, mutilated, or defaced blanks shall be
returned with the book. No physician shall prescribe and no pharmacist shall fill
any prescription for liquor except on blanks so provided, except in cases of emer
gency, in which event a record and report shall be made and kept as in other cases.

SEC. 9. If at any time there shall be filed with the Commissioner a complaint
under oath setting forth facts showing, or if the Commissioner has reason to be
lieve, that any person who has a permit is not in good faith conforming to the
provisions of this act, or has violated the laws of any State relating to intoxicating
liquor, the Commissioner or his agent shall immediately issue an order citing such
person to appear before him on a day named not more than thirty and not less than
fifteen days from the date of service upon such permittee of a copy of the citation,
which citation shall be accompanied by a copy of such complaint, or in the event
that the proceedings be initiated by the Commissioner, with a statement of the
facts constituting the violation charged, at which time a hearing shall be had
unless continued for cause. Such hearings shall be held within the judicial district
and within fifty miles of the place where the offense is alleged to have occurred, un
less the parties agree on another place. If it be found that such person has been
guilty of wilfully violating any such laws, as charged, or has not in good faith con
formed to the provisions of this act, such permit shall be revoked, and no permit
shall be granted to such person within one year thereafter. Should the permit be
revoked by the Commissioner, the permittee may have a review of his decision
before a court of equity in the manner provided in Section 5 hereof. During the
pendency of such action such permit shall be temporarily revoked.

SEC. 10. No person shall manufacture, purchase for sale, sell, or transport any
liquor without making at the time a permanent record thereof showing in detail
the amount and kind of liquor manufactured, purchased, sold, or transported, to
gether with the names and addresses of the persons to whom sold, in case of sale,
and the consignor and consignee in case of transportation, and the time and place
of such manufacture, sale, or transportation. The Commissioner may prescribe
the form of such record, which shall at all times be open to inspection as in this act
provided.

SEC. ii. All manufacturers and wholesale or retail druggists shall keep as a part
of the records required of them a copy of all permits to purchase on which a sale
of any liquor is made, and no manufacturer or wholesale druggist shall sell or
otherwise dispose of any liquor except at wholesale, and only to persons having
permits to purchase in such quantities.

322 Appendices

SEC. 12. All persons manufacturing liquor for sale under the provisions of this
title shall securely and permanently attach to every container thereof, as the same
is manufactured, a label stating name of manufacturer, kind and quantity of liquor
contained therein, and the date of its manufacture, together with the number of
the permit authorizing the manufacture thereof; and all persons possessing such
liquor in wholesale quantities shall securely keep and maintain such label thereon;
and all persons selling at wholesale shall attach to every package of liquor, when
sold, a label setting forth the kind and quantity of liquor contained therein, by
whom manufactured, the date of sale, and the person to whom sold; which label
shall likewise be kept and maintained thereon until the liquor is used for the pur
pose for which such sale was authorized.

SEC. 13. It shall be the duty of every carrier to make a record at the place of
shipment of the receipt of any liquor transported, and he shall deliver liquor only
to persons who present to the carrier a verified copy of a permit to purchase, which
shall be made a part of the carrier's permanent record at the office from which
delivery is made.

The agent of the common carrier is hereby authorized to administer the oath
to the consignee in verification of the copy of the permit presented, who, if not
personally known to the agent, shall be identified before the delivery of the liquor
to him. The name and address of the person identifying the consignee shall be
included in the record.

SEC. 14. It shall be unlawful for a person to use or induce any carrier, or any
agent or employe thereof, to carry or ship any package or receptacle containing
liquor without notifying the carrier of the true nature and character of the ship
ment. No carrier shall transport nor shall any person receive liquor from a carrier
unless there appears on the outside of the package containing such liquor the follow
ing information:

Name and address of the consignor or seller, name and address of the consignee,
kind and quantity of liquor contained therein, and number of the permit to purchase
or ship the same, together with the name and address of the person using the
permit.

SEC. 15. It shall be unlawful for any consignee to accept or receive any package
containing any liquor upon which appears a statement known to him to be false,
or for any carrier or other person to consign, ship, transport, or deliver any such
package, knowing such statement to be false.

SEC. 1 6. It shall be unlawful to give to any carrier or any officer, agent, or per
son acting or assuming to act for such carrier an order requiring the delivery to
any person of any liquor or package containing liquor consigned to, or purporting
or claimed to be consigned to, a person when the purpose of the order is to enable
any person not an actual bona fide consignee to obtain such liquor.
^ SEC. 17. It shall be unlawful to advertise anywhere, or by any means or method,
liquor, or the manufacture, sale, keeping for sale, or furnishing of the same, or
where, how, from whom, or at what price the same may be obtained. No one shall
permit any sign or billboard containing such advertisement to remain upon one's
premises. But nothing herein shall prohibit manufacturers and wholesale druggists
holding permits to sell liquor from furnishing price lists, with description of liquor
for sale, to persons permitted to purchase liquor, or from advertising alcohol in
business publications, or trade journals circulating generally among manufacturers
of lawful alcoholic perfumes, toilet preparations, flavoring extracts, medicinal
preparations, and like articles: Provided, however, That nothing in this act or in
the act making appropriations for the Post Office Department, approved March
3, 1917 (Thirty-ninth Statutes at Large, Part I, Page 1058, et seq.), shall apply
to newspapers published in foreign countries when mailed to this country.

Appendices 323

SEC. 1 8. It shall be unlawful to advertise, manufacture, sell, or possess for sale
any utensil, contrivance, machine, preparation, compound, tablet, substance,
formula, direction, or recipe advertised, designed or intended for use in the un
lawful manufacture of intoxicating liquor.

SEC. 19. No person shall solicit or receive, nor knowingly permit his employe to
solicit or receive, from any person any order for liquor or give any information of
how liquor may be obtained in violation of this act.

SEC. 20. Any person who shall be injured in person, property, means of support,
or otherwise by any intoxicated person, or by reason of the intoxication of any
person, whether resulting in his death or not, shall have a right of action against
any person who shall, by unlawfully selling to or unlawfully assisting in procuring
liquor for such intoxicated person, have caused or contributed to such intoxica
tion, and in any such action such person shall have a right to recover actual and
exemplary damages. In case of the death of either party, the action or right of ac
tion given by this section shall survive to or against his or her executor or adminis
trator, and the amount so recovered by either wife or child shall be his or her sole
and separate property. Such action may be brought in any court of competent
jurisdiction. In any case where parents shall be entitled to such damages, either
the father or mother may sue alone therefor, but recovery by one of such parties
shall be a bar to suit brought by the other.

SEC. 21. Any room, house, building, boat, vehicle, structure, or place where in
toxicating liquor is manufactured, sold, kept, or bartered in violation of this title,
and all intoxicating liquor and property kept and used in maintaining the same, is
hereby declared to be a common nuisance, and any person who maintains such a
common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall
be fined not more than $1,000, or be imprisoned for not more than one year, or
both. If a person has knowledge or reason to believe that his room, house, building,
boat, vehicle, structure, or place is occupied or used for the manufacture or sale of
liquor contrary to the provision of this title, and suffers the same to be so occupied
or used, such room, house, building, boat, vehicle, structure, or place shall be sub
ject to a lien for and may be sold to pay all fines and costs assessed against the
person guilty of such nuisance for such violation, and any such lien may be enforced
by action in any court having jurisdiction.

SEC. 22. An action to enjoin any nuisance defined in this title may be brought in
the name of the United States by the Attorney General of the United States or
by any United States attorney or any prosecuting attorney of any State or any
subdivision thereof or by the Commissioner or his deputies or assistants. Such
action shall be brought and tried as an action in equity and may be brought in
any court having jurisdiction to hear and determine equity cases. If it is made
to appear by affidavits or otherwise, to the satisfaction of the court, or judge in vaca
tion, that such nuisance exists, a temporary writ of injunction shall forthwith issue
restraining the defendant from conducting or permitting the continuance of such
nuisance until the conclusion of the trial. If a temporary injunction is prayed for,
the court may issue an order restraining the defendant and all other persons from
removing or in any way interfering with the liquor or fixtures, or other things used
in connection with the violation of this act constituting such nuisance. No bond
shall be required in instituting such proceedings. It shall not be necessary for the
court to find the property involved was being unlawfully used as aforesaid at the
time of the hearing, button finding that the material allegations of the petition are
true, the court shall order that no liquors shall be manufactured, sold, bartered,
or stored in such room, house, building, boat, vehicle, structure or place, or any
part thereof. And upon judgment of the court ordering such nuisance to be abated,
the court may order that the room, house, building, structure, boat, vehicle, or

324 Appendices

place shall not be occupied or used for one year thereafter; but the court may,
in its discretion, permit it to be occupied or used if the owner, lessee, tenant,
or occupant thereof shall give bond with sufficient surety, to be approved
by the court making the order, in the penal and liquidated sum of not less
than $500 nor more than $1,000, payable to the United States, and conditioned
that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept,
or otherwise disposed of therein or thereon, and that he will pay all fines, costs,
and damages that may be assessed for any violation of this title upon said prop
erty.

SEC. 23. That any person who shall, with intent to effect a sale of liquor, by him
self, his employe, servant, or agent, for himself or any person, company, or cor
poration, keep or carry around on his person, or in a vehicle, or other conveyance
whatever, or leave in a place for another to secure, any liquor, or who shall travel
to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of
liquor in violation Jof this title is guilty of a nuisance and may be restrained by in
junction, temporary and permanent, from doing or continuing to do any of said
acts or things.

In such proceedings it shall not be necessary to show any intention on the part
of the accused to continue such violations if the action is brought within sixty days
following any such violation of the law.

For removing and selling property in enforcing this act the officer shall be en
titled to charge and receive the same fee as the Sheriff of the County would receive
for levying upon and selling property under execution, and for closing the premises
and keeping them closed a reasonable sum shall be allowed by the court.

Any violation of this title upon any leased premises by the lessee or occupant
thereof shall, at the option of the lessor, work a forfeiture of the lease.

SEC. 24. In the case of the violation of any injunction, temporary or permanent,
granted pursuant to the provisions of this title, the court or in vacation a judge
thereof, may summarily try and punish the defendant. The proceedings for punish
ment for contempt shall be commenced by filing with the clerk of the court from
which such injunction issued information under oath setting out the alleged facts
constituting the violation, whereupon the court or judge shall forthwith cause a
warrant to issue under which the defendant shall be arrested. The trial may be
had upon affidavits, or either party may demand the production and oral examina
tion of the witnesses. Any person found guilty of contempt under the provisions
of this section shall be punished by a fine of not less than 500 nor more than
#r,ooo, or by imprisonment of not less than thirty days nor more than twelve
months, or by both fine and imprisonment.

SEC. 25. It shall be unlawful to have or possess any liquor or property designed
for the manufacture of liquor intended for use in violating this title or which has
been so used, and no property rights shall exist in any such liquor or property. A
search warrant may issue as provided in Title XL of public law numbered 24 of
the Sixty-fifth Congress, approved June 15, 1917, and such liquor, the containers
thereof, and such property so seized shall be subject to such disposition as the court
may make thereof. If it is found that such liquor or property was so unlawfully
held or possessed, or had been so unlawfully used, the liquor and all property de
signed for the unlawful manufacture of liquor shall be destroyed unless the court
shall otherwise order. No search warrant shall issue to search any private dwelling
occupied as such unless it is being used for the unlawful sale of intoxicating liquor,
or unless it is in part used for some business purpose such as a store, shop, saloon,
restaurant, hotel, or boarding house. The term "private dwelling" shall be con
strued to include the room or rooms used and occupied not transiently but solely
as a residence in an apartment house, hotel, or boarding house. The property seized

Appendices 325

on any such warrant shall not be taken from the officer seizing the same on any writ
of replevin or other like process.

SEC. 26. When the Commissioner, his assistants, inspectors, or any officer of
the law shall discover any person in the act of transporting in violation of the law,
intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other
vehicle, it shall be his duty to seize any and all intoxicating liquors found therein
being transported contrary to law. Whenever intoxicating liquors transported or
possessed illegally shall be seized by an officer he shall take possession of the vehicle
and team or automobile, boat, air or water craft, or any other conveyance, and
shall arrest any person in charge thereof. Such officer shall at once proceed against
the person arrested under the provisions of this title in any court having competent
jurisdiction: but the said vehicle or conveyance shall be returned to the owner
upon execution by him of a good and valid bond, with sufficient sureties, in a sum
double the value of the property, which said bond shall be approved by said officer
and shall be conditioned to return said property to the custody of said officer on
the day of trial to abide the judgment of the court. The court upon conviction of
the person so arrested shall order the liquor destroyed, and unless good cause to
the contrary is shown by the owner, shall order a sale by public auction of the
property seized, and the officer making the sale, after deducting the expenses of
keeping the property, the fee for the seizure, and the cost of the sale, shall pay all
liens, according to their priorities, which are established, by intervention or other
wise, at said hearing or in other proceeding brought for said purpose, as being bona
fide and as having been created without the lienor having any notice that the carry
ing vehicle was being used or was to be used for illegal transportation of liquor, and
shall pay the balance of the proceeds into the Treasury of the United States as
miscellaneous receipts. All liens against property sold under the provisions of this
section shall be transferred from the property to the proceeds of the sale of the
property. If, however, no one shall be found claiming the team, vehicle, water, or
air craft, or automobile, the taking of the same, with a description thereof, shall be
advertised in some newspaper published in the city or county where taken, or if
there be no newspaper published in such city or county, in a newspaper having
circulation in the county, once a week for two weeks, and by handbills posted in
three public places near the place of seizure, and if no claimant shall appear within
ten days after the last publication of the advertisement, the property shall be sold
and the proceeds, after deducting the expenses and costs, shall be paid into the
Treasury of the United States as miscellaneous receipts.

SEC. 27. In all cases in which intoxicating liquors may be subject to be destroyed
under the provisions of this act the court shall have jurisdiction upon the applica
tion of the United States Attorney to order them delivered to any department or
agency of the United States Government for medicinal, mechanical, or scientific
uses, or to order the same sold at private sale for such purposes to any person hav
ing a permit to purchase liquor the proceeds to be covered into the Treasury of
the United States to the credit of miscellaneous receipts, and all liquor heretofore
seized in any suit or proceeding brought for violation of law may likewise be so
disposed of, if not claimed within sixty days from the date this section takes effect,

SEC. 28. The Commissioner, his assistants, agents, and inspectors, and all other
officers of the United States, whose duty it is to enforce criminal laws, shall have
all the power and protection in the enforcement of this act or any provisions thereof
which is conferred by law for the enforcement of existing laws relating to the manu
facture or sale of intoxicating liquors under the law of the United States.

SEC. 29. Any person who manufactures or sells liquor in violation of this title
shall for a first offense be fined not more than 1,000, or imprisoned not exceeding
six months, and for a second or subsequent offense shall be fined not less than $200

326 Appendices

nor more than $2,000, and be imprisoned not less than one month nor more than

five years. . ...

Any person violating the provisions of any permit, or who makes any false re
cord, report, or affidavit required by this title, or violates any of the provisions of
this title, for which offense a special penalty is not prescribed, shall be fined for a
first offense not more than 500; for a second offense not less than 100 nor more
than $1,000, or be imprisoned not more than ninety days; for any subsequent
offense he shall be fined not less than $500 and be imprisoned not less than three
months nor more than two years. It shall be the duty of the prosecuting officer to
ascertain whether the defendant has been previously convicted, and to plead the
prior conviction in the affidavit, information, or indictment. The penalties provided
in this act against the manufacture of liquor without a permit shall not apply to a
person for manufacturing nonintoxicating cider and fruit juices exclusively for use
in his home, but such cider and fruit juices shall not be sold or delivered except to
persons having permits to manufacture vinegar. ^ ....

SEC. 30. No person shall be excused, on the ground that it may tend to incrimin
ate him or subject him to a penalty or forfeiture, from attending and testifying,
or producing books, papers, documents, and other evidence in obedience to a sub
poena of any court in any suit or proceeding based upon or growing out of any
alleged violation of this act; but no natural person shall be prosecuted or subjected
to any penalty or forfeiture for or on account of any transaction, matter, or thing
as to which, in obedience to a subpoena and under oath, he may so testify^or pro
duce evidence, but no person shall be exempt from prosecution and punishment
for perjury committed in so testifying.

SEC. 31. In case of a sale of liquor where the delivery thereof was made by a
common or other carrier the sale and delivery shall be deemed to be made in the
county or district wherein the delivery was made by such carrier to the consignee,
his agent or employe, or in the county or district wherein the sale was made, or
from which the shipment was made, and prosecution for such sale or delivery may
be had in any such county or district.

SEC. 32. In any affidavit, information, or indictment for the violation of this act,
separate offenses may be united in separate counts and the defendant may be tried
on all at one trial and the penalty for all offenses may be imposed. It shall not be
necessary in any affidavit, information, or indictment to give the name of ^the
purchaser or to include any defensive negative averments, but it shall be sufficient
to state that the act complained of was then and there prohibited and unlawful,
but this provision shall not be construed to preclude the trial court from directing
the furnishing the defendant a bill of particulars when it deems it proper to do so.

SEC. 33. After February I, 1920, the possession of liquors by any person not
legally permitted under this title to possess liquor shall be prima facie evidence
that such liquor is kept for the purpose of being sold, bartered, exchanged, given
away, furnished, or otherwise disposed of in violation of the provision of this title.
Every person legally permitted under this title to have liquor shall report to the
Commissioner within ten days after the date when the Eighteenth Amendment of
the Constitution of the United States goes into effect, the kind and amount of
intoxicating liquors in his possession. But it shall not be unlawful to possess liquors
in one's private dwelling while the same is occupied and used by him as his dwelling
only and such liquor need not be reported, provided such liquors are^ for use only
for the personal consumption of the owner thereof and his family residing in such
dwelling and of his bona fide guests when entertained by him therein; and the bur
den of proof shall be upon the possessor in any action concerning the same to
prove that such liquor was lawfully acquired, possessed, and used.

SEC. 34. All records and reports kept or filed under the provisions of this act shall

Appendices 3 2 7

be subject to inspection at any reasonable hour by the Commissioner or any of his
agents or by any public prosecutor or by any person designated by him, or by any
peace officer in the State where the record is kept, and copies of such records and
reports duly certified by the person with whom kept or filed may be introduced in
evidence with like effect as the originals thereof, and verified copies of such reports
shall be furnished to the Commissioner when called for.

SEC. 35. All provisions of law that are inconsistent with this act are repealed
only to the extent of such inconsistency and the regulations herein provided for
the manufacture or traffic in intoxicating liquor shall be construed as in addition
to existing laws. This act shall not relieve any one from paying any taxes or other
charges imposed upon the manufacture or traffic in such liquor. No liquor revenue
stamps or tax receipts for any illegal manufacture or sale shall be issued in ad
vance, but upon evidence of such illegal manufacture or sale a tax shall be assessed
against, and collected from, the person responsible for such illegal manufacture or
sale in double the amount now provided by law, with an additional penalty of
$500 on retail dealers and $1,000 on manufacturers. The payment of such tax or
penalty shall give no right to engage in the manufacture or sale of such liquor, or
relieve any one from criminal liability, nor shall this act relieve any person from
any liability, civil or criminal, heretofore or hereafter incurred under existing laws.

The Commissioner, with the approval of the Secretary of the Treasury, may com
promise any civil cause arising under this title before bringing action in court; and
with the approval of the Attorney General he may compromise any such cause
after action thereon has been commenced.

SEC. 36. If any provision of this act shall be held invalid it shall not be construed
to invalidate other provisions of the act.

SEC. 37. Nothing herein shall prevent the storage in United States bonded ware
houses of all liquor manufactured prior to the taking effect of this act, or prevent
the transportation of such liquor to such warehouses or to any wholesale druggist
for sale to such druggist for purposes not prohibited when the tax is paid, and per
mits may be issued therefor.

A manufacturer of any beverage containing less than one-half of I per centum
of alcohol by volume may, on making application and giving such bond as the
Commissioner shall prescribe, be given a permit to develop in the manufacture
thereof by the usual methods of fermentation and fortification or otherwise a
liquid such as beer, ale, porter, or wine, containing more than one-half of I per
centum of alcohol by volume, but before any such liquid is withdrawn from the
factory or otherwise disposed of the alcoholic contents thereof shall under such
rules and regulations as the Commissioner may prescribe be reduced below such
one-half of I per centum of alcohol: Provided, That such liquid may^be removed
and transported, under bond and under such regulations as the Commissioner may
prescribe, from one bonded plant or warehouse to another for the purpose of hav
ing the alcohol extracted therefrom. And such liquids may be developed, under
permit, by persons other than the manufacturers of beverages containing less than
one-half of i per centum of alcohol by volume, and sold to such manufacturers for
conversion into such beverages. The alcohol removed from such liquid, if evapor
ated and not condensed and saved, shall not be subject to tax; if saved, it shall be
subject to the same law as other alcoholic liquors.

Credit shall be allowed on the tax due on any alcohol so saved to the amount of
any tax paid upon distilled spirits or brandy used in the fortification of the liquor
from which the same is saved.

When fortified wines are made and used for the production of nonbeverage al
cohol and dealcoholized wines containing less than one-half of I per centum of
alcohol by volume, no tax shall be assessed or paid on the spirits used in such ford-

328 Appendices

fication, and such dealcoholized wines produced under the provisions of this act,
whether carbonated or not, shall not be subject to the tax on artificially carbonated
or sparkling wines, but shall be subject to the tax on still wines only.

In any case where the manufacturer is charged with manufacturing or selling
for beverage purposes any malt, vinous, or fermented liquids containing one-half
of i per centum or more of alcohol by volume, or in any case where the manufac
turer, having been permitted by the Commissioner to develop a liquid such as ale,
beer, porter, or wine containing more than one-half of I per centum of alcohol by
volume in the manner and for the purpose herein provided, is charged with failure
to reduce the alcoholic content of any such liquid below such one half of i per
centum before withdrawing the same from the factory, then in either such case the
burden of proof shall be on such manufacturer to show that such liquid so manu
factured, sold, or withdrawn contains less than one-half of i per centum of alcohol
by volume. In any suit or proceeding involving the alcoholic content of any bever
age, the reasonable expense of analysis of such beverage shall be taxed as costs in

SEC. 38. The Commissioner of Internal Revenue and the Attorney General of
the United States are hereby respectively authorized to appoint and employ such
assistants, experts, clerks, and other employes in the District of Columbia or else
where, and to purchase such supplies and equipment as they may deem necessary
for the enforcement of the provisions of this act, but such assistants, experts, clerks,
and other employes, except such executive officers as may be appointed by the
Commissioner or the Attorney General to have immediate direction of the enforce
ment of the provisions of this act, and persons authorized to issue permits, and
agents and inspectors in the field service, shall be appointed under the rules and
regulations prescribed by the Civil Service Act: Provided, That the Commissioner
and Attorney General in making such appointments shall give preference to those
who have served in the military or naval service in the recent war, if otherwise
qualified, and there is hereby authorized to be appropriated, out of any money in
the Treasury not otherwise appropriated, such sum as may be required for the en
forcement of this act, including personal services in the District of Columbia, and
for the fiscal year ending June 30, 1920, there is hereby appropriated, out of any
money in the Treasury not otherwise appropriated, the sum of $2,000,000 for the
use of the Commissioner of Internal Revenue and $100,000 for the use of the De
partment of Justice for the enforcement of the provisions of this act, including
personal services in the District of Columbia, and necessary printing and binding.

SEC. 39. In all cases wherein the property of any citizen is proceeded against or
wherein a judgment affecting it might be rendered, and the citizen is not the one
who in person violated the provisions of the law, summons must be issued in due
form and served personally, if said person is to be found within the jurisdiction of
the court.

APPENDIX F

AMOUNTS APPROPRIATED BY CONGRESS FOR THE
USE OF THE PROHIBITION BUREAU FOR ENFORCE
MENT OF THE NATIONAL PROHIBITION ACT, FOR THE
FISCAL YEARS 1920 TO 1929 INCLUSIVE

(SOURCE: Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 2)

1920 (January 17 to June 30) $ 2,000,000

Deficiency appropriations 200,000

Total for 1920 2,200,000

1921- 4,750,000

Deficiency appropriation (March I, 1921) 1,400,000

Deficiency appropriation (June 16, 1921) 200,000

Total for 1921 6,350,000

1922 6,750,000

I9 2 3 8,500,000

1924 8,250,000

I9 2 5 10,012,330

1926 9,670,560

1927 ; 9.306,245

Supplemental appropriation, 1927 (July 3, 1926). . . 2,686,760

Total for 1927 1 1,993,005

1928 11,990,965

1929 ; ' 11,378,700

Welsh Act deficiency appropriation (March 4, 1929) 589,010
Amount authorized by the Commissioner of Prohibi
tion to be expended from deficiency appropriation 433,910

Total for 1929 12,401,620

(The above figures are exclusive of amounts appropriated for enforcement of the
Harrison Narcotic Act.)

329

APPENDIX G

ARRESTS, SEIZURES, ETC., MADE BY FEDERAL PRO
HIBITION AGENTS SINCE THE EFFECTIVE DATE OF
THE NATIONAL PROHIBITION ACT

(SouRCE: Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 64)

PERIOD FROM
JAN. 17 TO

TTT'WF 30

FISCAL YEAR I

ZNDED JUNE 30

1920

1921

1922

Illicit distilleries seized

4,645

9,746

8,313

Illicit stills seized

4,888

10,991

IO,QQA

Illicit still worms seized

2,218

5,182

IO.2O3

Illicit fermenters seized

21,111

70,014.

8 1 640

Gallons of distilled spirits seized
Gallons of malt liquor seized. . .
Gallons of wine, cider, mash,
and pomace seized. .... . .

137,772.38
1,637,483.00

QC, 672.QO

413,987.32
4,963,005.27

4.28,303.88

382,390.44
4,187,625.67

X.OC2 213 88

Number of automobiles seized. .
Number of boats and launches

209

2

7 o6

23

1,886

1A.

Total appraised value of pro
perty seized

$1,262,196.67

$8,181,866.70

/4

$C,872 OQ2, OQ

Number of agents injured. ....
Number of agents killed. ......

o
o

13
14

28

Number of persons arrested. . . ,

10,548

34,175

42223

FISCAL YEAR ENDED JUNE 30

1923

1924

1925

Illicit distilleries seized

12,219
14,000
7,512
124,401
457*365-25
4,803,872.92

9,085,411.34
3>977

134

$11,478,277-53
45
II
66,936

10,392
I5853

8,211

124,720
1,672,743.81
5,379,528.03

8,774,916.80
5>2i4

236

$10,843,881.83
28
^
68,1 16

12,023

17,854
7,850
134,810
1,102,787.65
7,040,537.30

10,572,933-50
6,089

182

$11,199,664.46
39
7
62,747

Illicit stills seized

Illicit still worms seized

Illicit fermenters seized

Gallons of distilled spirits seized
Gallons of malt liquor seized. . ,
Gallons of wine, cider, mash,
and pomace seized. . ,

Number of automobiles seized.
Number of boats and launches
seized

Total appraised value of pro
perty seized

Number of agents injured
Number of agents killed

Number of persons arrested. . . .

330

APPENDIX G Continued

ARRESTS, SEIZURES, ETC., MADE BY FEDERAL PRO
HIBITION AGENTS SINCE THE EFFECTIVE DATE OF
THE NATIONAL PROHIBITION ACT

(SouRCE; Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 64)

FISCAL YEAR ENDED JUNE 30

1926

1927

Illicit distilleries seized

Illicit stills seized

Illicit still worms seized

Illicit fermenters seized

Gallons of distilled spirits seized

Gallons of malt liquor seized

Gallons of wine, cider, mash, and pomace seized. .

Number of automobiles seized

Number of boats and launches seized

Total appraised value of property seized

Number of agents injured

Number of agents killed

Number of persons arrested

12,227
12,248

6,974-

130,53

1,24.7,520,08

14,220,551.93

i3>273>738.io

5.935
187

50
6

n,88i

8,024

173.656

1,462,532,76

7,137

353

59

6

64,986

FISCAL YEAR ENDED JUKE 30

1928

1929

Illicit distilleries seized

16,220
18,980

217,278
1,048,636.84
4,254,029.58
27,171,567-06

6,934
81

$23,204,345,20
89

10

15,794
11,542
7,982
211,924
1,185,654.88
3,312,491.28
26,393*410.74

'$9

94
6

66,878

Illicit stills seized

Illicit still worms seized

Illicit fermenters seized

Gallons of distilled spirits seized

Gallons of malt liquor seized

Gallons of wine, cider, mash, and pomace seized. .
Number of automobiles seized

Number of boats and launches seized

Total appraised value of property seized ......

Number of agents injured

Number of agents killed

Number of persons arrested

APPENDIX H

CRIMINAL PROSECUTIONS UNDER THE NATIONAL

PROHIBITION ACT IN THE FEDERAL COURTS, AS

SHOWN BY THE REPORTS OF THE DEPARTMENT OF

JUSTICE, BY CASES

(SOURCE: Statistics Concerning Intoxicating Liquors, United States
Treasury Department, 1930, p. 70)

(JANUARY-
JUNE), I92C

1921

1922

1923

Commenced during
the year

7,291

5*095
43 1 5
125

6SS

4,109
322

2,196
$605,31442
$507,482.70

29,114

21,297
17,962

765

2,570
16,610
2,075

10,365
$3,360,298.46
$2,418,117.55

34,984

28,743
22,749
i,i95

4,799

20,571
3,346

16,713
$4,041,456.03

#2,376,305-20
$846.95

49,021

42,730
34,067
1,770

6,893

30,654

4,835
23,060

$5,832,389.18
$4,366,056.00
$144,528.63

Terminated during
the same period.
Convictions

Acquittals

Nol pros or dis
missed, . ,

Pleas of guilty
Trials by jury

Pending close of
vear

Fines and penalties
imposed ,

Realized on fines,
forfeitures, etc. , .
Collected without
prosecution

1924

1925

1926

Commenced during the year
Terminated during the same
period, *

45,878

46,609
37,i8i
*>754
7,674
33,834
5>2I7
22,329
$7,497)235-19
$5,682,719.87
$84,052.65

5>743

47,925
38,498
1,805
7,622
35>034
5,389
24,684
$7,681,947.28
#5>3 12,338.38
$65,430.10

44,492

48,529
37,oi8
i>303
7,58o

34,233
4,090
20,749

7,494557.09
$5,231,130.90
$97,417-88

Convictions ,

Acquittals r -

Nol pros or dismissec
Pleas of guilty.

1

Trials by jury ,

Pending close of yeai
Fines and penalties i
Realized on fines, for
Collected without pr<

cnposed. .. . .
feitures, etc.
Dsecution. . .

l No record.

332

Appendices
APPENDIX H Continued

333

CRIMINAL PROSECUTIONS UNDER THE NATIONAL
PROHIBITION ACT IN THE FEDERAL COURTS, BY

INDIVIDUALS

1927

1928

1929

Commenced during the year
Terminated during the same

50*250
ci.Q4.ir

73>034
77,7QQ

74>7*3

75,298

Convictions

36,546

58,813

56,546

Acquittals

I*$$7

2,722

2,666

Nol pros or dismissed

1^,84.2

17,264

16,086

Pleas of guilty

33,430

54,325

51,651

Trials by jury

4,1QO

7,072

4,622

Pending close of year (by cases)
Fines and penalties imposed. . . .
Average fine

20,173
%>775 5 22S-48
1$ 1 57.90

18,005
^7,031,109.66
l$ 1 2O.OO

19,468
1^7,363,492.22
1$ 1 3 o.oo

Number of jail sentences imposed
Average sentence (based on every
conviction) days.

i 11,818
144

1 15,793
1 34-4

1 i9o74
r 47-3

Average sentence (based on num
ber of jail sentences given) days
Per cent of jail sentences

1136.4
132.3

1 I20-7

^S-s

^140.4
*33-7

*7 o -3

*75-5

175.0

iSuspended, paroled, and probated sentences not included.

APPENDIX I

STATE REFERENDUMS ON PROHIBITION QUESTIONS

SINCE 1920

(SOURCES : Hearings of a Subcommittee of the Senate Committee on
the Judiciary > 6gth Congress, ist Session; Editorial Research Reports,
Washington; New York Times)

YEAR

STATE

1920

California

1920

Massachusetts

1920

Missouri

1922

California

1922

Ohio

1922

Massachusetts

1922

Illinois

1924

Massachusetts

1926

California

1926

Colorado

1926

Illinois

1926

Missouri

1926

New York

1926

Montana

1926

Nevada

1926 Wisconsin

1928 North Dakota

1928 Montana

1928 Massachusetts

1929 Wisconsin

QUESTION YES No

Adoption of state enforcement law 400,475 465,537

Legalization of light wines and beer 442,215 432,951

Adoption of state enforcement law 481,880 420,581

Adoption of state enforcement law 445,077 411,134

Referendum on 2.75 per cent beer 7*9?505 908,522

Adoption of state enforcement law 323,964 427,840

Referendum on light wines and beer 1,065,242 5 1 2, 1 1 1

Adoption of state enforcement law 454,656 446,473

Repeal of state enforcement law 502,258 565,875
Liberalization of state enforcement

law 107,749 154,672
Appeal to Congress to modify

Volstead Act 840,631 556,592

Repeal of state liquor laws 294,388 569,931
Appeal to Congress to modify

Volstead Act 1,763,070 598,484
Repeal of state enforcement law 83,231 72,982
Appeal to Congress to summon a
convention to propose an amend
ment to the Eighteenth Amend
ment. 18,131 5,352
Referendum on 2.75 per cent beer 349,443 177,602
Repeal of prohibition clause in state

Constitution 96,837 103,696
Re-adoption of state enforcement

law 68,431 80,619
Instructing state Senators to vote
for resolution requesting repeal

of the Eighteenth Amendment 707,352. 422,655

Repeal of state enforcement law 339,337 196,402

334

INDEX

Actuarial Society of America, 52.

Agent provocateur. See Under-cover
work.

Agents, salary scale of, 78-79; civil ser
vice regulations, 94-97, 106-107, 189-
190; number of, 67, no, 236, 255,
266; cases of corruption, 159-161,
162-163; standards, 165, 247, 248-
249; offers of bribes, 166.

Alabama, state law, 20-21, 73.

Alcoholism, deaths from, 173.

Aliens, bill to deport, 89-91.

American Federation of Labor, on bone-
dry prohibition, 46, 72, 209; testi
mony before Congress, 213; on modi
fication, 293-294.

American Issue, 27.

American Lutheran Publicity Bureau,
88.

American Thereapeutic Society, 85. ^

Andrews, Lincoln C., on medicinal
liquor, 112; on illegal beer, 113; on
smuggled liquor, 115; on denaturing
plants, 118; on diversion of alcohol,
1 1 8; estimate of stills seized, 121;
reorganization of staff, 128; on ar
rests, 153, 265; estimate of men em
ployed, 162; on .border force, 186;
on appropriations, 186; enforcement
program, 186-188; on attitude of
Congress, 189; policy criticized, 191;
on local officers, 192; on wood alcohol,
198; standards for agents, 248; on
illegal methods, 249; on commercial
violations, 249; on importance of
stills, 259.

Anti-Saloon League, organization of,
8-9; church support, 9-10; growth,
10; political methods, 10; literature,

10-11; on progress of prohibition, n;
demand for national legislation, 15;
activity in elections, 16-17; compila
tion of state laws, 20-22; on war situa
tion, 27; efforts in behalf of ratifica
tion, 40, 41; draft of enforcement
law, 47-48; on enforcement, 51, 63,
83 ; criticism of courts, 63-64; on ex
tension of Volstead Act to China, 83;
on Willis-Campbell Act, 86; on civil
service, 94-95; on enforcement in
Iowa, 131; on results of prohibition,
158; endorsement of Kramer, 164-
165; on under-cover work, 200; on
attitude of press, 217; statements in
New York Times, 219; on unofficial
polls, 225; on elections to Congress,
226; on transfer of Prohibition Bureau,
251-252. See also Wheeler, Wayne B.

Appropriations for enforcement, for
first half year, 78; debated, 80, 88, 91,
98, 105; recommended in budgets,
105-^06; reluctance of Congress to
increase, 186, 234-236, 288-290;
state appropriations, 205-206, 277-
278; budget in 1930, 280; annual
appropriations, Appendix F.

Arrests by federal agents, 153, 264-
265, Appendix G.

Arrests for intoxication. See Intoxica
tion.

Ashworth, George W., 57.

Associated Press, addressed by Presi
dent, 244.

Association Against the Prohibition
Amendment, 213.

Atlantic Monthly, 291.

Atterbury, W. W., 215.

Automobiles, and prohibition, 179.

335

336 Index

Babka, John J., 77-

Baltimore, protest meeting, 46.

Bar associations, resolutions of, 213-
214.

Bargain days, creation of, 155-156;
penalties imposed, 156-157*

Beauty shops, 180.

Beer, per capita consumption of, 12;
proposal to exempt from Eighteenth
Amendment, 31; regulation of, 66-
67; use for medicinal purposes, 84-
86; new legislation recommended,
112-113, 186; proposal to legalize,
293-294.

Beveridge, Albert J., 191-192-

Biggs, Dr. Herman, 86,

Blacklist, organized by brewers, 7, 215.

Blue laws, 291-292.

Bone-dry prohibition, state laws, 22.

Borah, William E., on invasion of dry
states, 13; on time-limit or ratifica
tion, 31; on Smith campaign, 229-
230; on responsibility of states, 270-
271, 275; on nullification, 292.

Boston, vote on prohibition, 71; Bar
Association, 214,

Boyd, Frank L., 126.

Breweries, closed as war measure, 41.

Brewers, tactics of, 5^7; control of
saloon, 5; political activity, 7; black
list, 7, 215; denounced as enemies,
27; year of grace, 32; early leadership
of opposition, 208-209.

Bribery. See Corruption.

Bridge Whist Club, 194-195.

Britt, J. J., 155-

Broussard, Robert F., 31.

Bruce, W. Cabell, 234.

Building boom, and prohibition, 178-

179-

Bureau of Chemistry, 70.

Business. See Economic effects of pro
hibition.

Butler, Nicholas Murray, 232.

Butler, Smedley D., appointed, 141;
activities, 142; on enforcement, 143-
144; return to Marine Corps, 144;
on enforcement in courts, 145.

Buyer of liquor, proposal to punish, 30-
31, 288.

California, attitude of grape growers,
52-53; referendums, 222*

Campbell, Philip P., 84.

Canada, adoption of prohibition, 40;
convention with, 114-115. &<? also
Smuggled liquor.

Canned heat, 202.

Cannon, Bishop James, Jr., on enforce
ment, 80; on Wickersham letter, 242;
on rebellion, 286.

Caraway, Thaddeus H., 242-243.

Catt, Mrs. Carrie Chapman, 287.

Cellar, Emanuel, 197.

Census Bureau, on deaths from alcohol
ism, 173; on deaths from all causes,
174; on prison population, 176; on
state expenditures, 205-206, 277.

Chapin, Daniel L., 126.

Chemical industry, need of alcohol,
68, 115-116.

Cherrington, Ernest H,, 9-10.

Chicago, fraudulent permits in, 59;
congestion in courts, 59; vote on pro
hibition, 71; activity of police, 138-
140; padlock cases, 150.

Chicago Tribune, 138.

China, proposal to extend Volstead Act
to, 81, 83.

Churches, temperance work of, 2, 8;
support of Anti-Saloon League, 9-10.
See also individual churches.

Cider, 48-49.

Cincinnati, vote on prohibition, 71;
officials convicted, 160.

Cities, opposition to prohibition, 71.

Civil service, proposal for, 94-97, 106-
107; proposal adopted, 189-190.

Geveland, 71.

Clyne, Charles F., 59.

Coast Guard, work of, 67, 114; enlarged
by Congress, 87, 114* 189*

Codification of laws, 251.

Colorado, referendum, 221,

Commercial cases, 247, 249-250.

Commission on Law Enforcement and
Observance, genesis of plan, 237-
240; appointment of, 241; statement
of chairman, 241; first report, 251-
252; proposal for trials without jury,
252-254; on observance and enforce
ment, 255-256; second report fore
cast, 257. See also Wickersham,
George W.

Concurrent power, proposed by com
mittee, 32; adopted, 33, 267-269;

Index

337

debate over state responsibility, 269-
274.

Congress, adoption of Webb-Kenyon
Law, 14; vote in 1914, 16; adoption
of Food Control Law, 26-27; Eight
eenth Amendment reported, 28;
Amendment adopted in Senate, 28-
32; Amendment adopted in House,
32-36; concurrent clause adopted,
33, 267-269; war-time prohibition
adopted, 41; Volstead Act adopted,
48-50; early policy of enforcement,
75-81; Willis-Campbell Act adopted,
84-86; bill to deport aliens, 89-91;
diplomatic corps debated, 91-94;
civil service debated, 94-97, 189-
190; policy of caution, 98-100;
division on prohibition, 164, 188,
226-227; Andrews program, 188-190;
debate over Coolidge order, 192-193;
debate over under-cover work, 194-
196; reapportionment, 227; rural and
urban representation, 227-228; Jones
Act adopted, 233; appropriations
debated, 234-236; policy in 1930,
288-290; modification debated, 293-
295.

Constitutional Liberty League of Mas
sachusetts, 213.

Consumption of liquor, 11-13.

Controller General, 194.

Coolidge, Calvin, on enforcement, 104-
105, 108-109; on civil service, 107;
executive order, 190; defense of order,
192-193; approval of Jones Act,
233; on duty of citizens, 246, 286;
appeal for state aid, 276^277; on chief
problem of enforcement, 285.

Corn sugar, 260, 261.

Corradini, Robert ., 170.

Corruption, cases of, 57, 58, 159-161;
in local office, 162; in federal service,
162-163; bribes offered agents, 166.

Cost of enforcement. See Appropriations
for enforcement.

Courts, federal, congestion in Chicago,
59; criticized by Anti-Saloon League,
63-64; prohibition cases in, 79, 145-
148; congestion in New York, 153-
154; additional judges requested,
154; penalties imposed, 154-157;
bargain days, 155-156; increase in
prohibition cases, 252-253, 303.

Courts, state, congestion in, 203-205,

206.
Cramton, Louis G, on alien violators,

90; on diplomatic corps, 91-93.
Curtis, Charles, 230.
Customs Service, 67, 114.

Daisy Day, 46.

Dalrymple, A. V., 53.

Dana, Dr. Charles L, 86.

Dana, Richard H., 96-97.

Dandelion wine, 120.

Daniels, Josephus, 143.

Daugherty, Harry, 146.

Day, Ralph A., 127.

Death rate. See Health.

Delaware, Lackawanna & Western
Railway, 7.

Democratic party, failure to endorse
prohibition, 72; campaign of 1928,
229.

Denaturants. See Industrial alcohol.

Department of Agriculture, 70.

Department of Commerce, 115.

Department of Justice, lack of funds,
59, 79; ruling on medicinal liquor,
84; on congestion in courts, 147, 1.54,
184; on variation in penalties, 154-
155; on Coolidge executive order,
192; on state aid, 206; on smuggled
liquor, 236.

Department of State, 1 14.

Department of Treasury, statement on
diplomats, 92-93; defense of under
cover work, 195-196. See also Mel
lon, Andrew W.

Detroit, vote on prohibition, 19, 71;
drives, 133-134; arrests for intoxica
tion, 169.

Dever, William E., warning to police,
139; on stills in Chicago, 140; on
leniency of judges, 155; on enforce
ment, 302-303.

Dinwiddie, Edwin C., 131.

Diplomatic corps, 91-94.

Disclosure law, 202.

Dispensary system, 4.

Distilled spirits, per capita consumption
of, 12.

Distilleries, closed by law, 40-41.

Distillers, tactics, 5-6; early leadership
of opposition, 208-210.

Doctors. See Medicinal liquor.

338

Index

Doran, James M., on diversion of alco
hol, 118; on denaturants, 198-199;
on cost of enforcement, 234, 266;
on stills, 259-260; on sugar distilla
tion, 260-261.

Drinking. See Consumption of liquor
and Intoxication.

Drives, origin of, 132; on Canadian
border, 133-134-

Druggists. See Medicinal liquor.

Drunkenness. See Intoxication.

Dubuque, la., 131-132-

Dyerville, Cal., 150.

Economic effects of prohibition, de
bated, 177-181.

Edge, Walter E., on use of denaturants,
197; on modification, 294.

Eighteenth Amendment, introduced,
15-16; reported to Senate, 28; de
bated, 28-31; adopted, 31-32; re
ported to House, 32; debated, 33-36;
adopted, 36; ratification, 39-42;
vote on ratification, Appendix D.,
question of ratification debated, 42-
45. See also Concurrent power and
Repeal.

Einstein, Izzy, 135-137-

Eliot, Charles W., 58-59.

Emergency Beer Bill. See Willis-Camp
bell Act.

Enforcement agents. See Agents.

Espionage. See Under-cover work.

Espionage Law> 26.

Evidence, purchase of, 193-194.

Farms, decline in value, 178.
Federal Council of Churches, 177.
Feigenspan, 209.
Fisher, Irving, 179.
Fitzmorris, Chief of Police, 138.
Food, importance during war, 25-26,

29, 40-41.

Food Control Law, 26-27.
Fort, Franklin W., on attitude of press,

217; on home manufacture, 295.
Fugitive Slave Law, 291, 292.

Garrett, Finis J., 93.

Gary, Ind., 159-160.

General Motors Corporation, 215,

German- American Alliance, 27.

Glass, Carter, on transfer of Prohibition

Bureau, 107; on investigation of en
forcement, 239.

Governors 5 Conference^ 104, 241-243.

Grape Growers Protective League, 53.

Grasselli Chemical Company, 7.

Great Britain, treaty with, 114.

Greene, Jerome D., 291.

Guthrie, William D., 209.

Hadley, Arthur Twining, 290, 292.

Hard liquor. See Distilled spirits.

Harding, Warren G., vote on Hardwick
amendment, 31; proposed time-limit
on ratification, 31; desire to see ques
tion settled, 76, 301; signature, as
President, of Willis-Campbell Act,
86; statements on enforcement, 102-
104, 108-109; on civil service, 107;
on state aid, 206-207; on obedience
to law, 245, 286; on local enforcement,
265; appeals for state aid, 275-276.

Hardwick, Thomas W., 30-31.

Harper's Magazine, 291.

Harreld, John W., 163.

Harris, William J., 235.

Hart, Harold L., 126-127.

Haynes, Roy A., statements on enforce
ment, 123-124; reorganization of
staff, 128; on padlock procedure, 148;
on corruption in local offices, 162;
endorsements of, 165; standards for
agents, 165, 248; on bribes offered
agents, 166; on economic effects of
prohibition, 179; articles in New
York Times, 219-220; on commercial
violations, 250; on progress of en
forcement, 283-284.

Health, effect of prohibition on, 172-

*75-

Hefiin, J. Thomas, 34-36, 76.

Heinz Pickle Company, 7.

Home brew, kitchen stills, 54~5S;
methods of manufacture, 70; provi
sions of law, 120; dandelion wine, 120;
search and seizure, 187, 202; proposal
to legalize, 295. See also Stills.

Hoover, Herbert, on prohibition as war
measure, 26; campaign of 1928, 230-
232; proposal for investigation, 237;
inaugural, 2j8; on obedience to law,
244, 285-286; address before As
sociated Press, 244; letter to National
Congress of Parents and Teachers,

Index

339

244; message to Congress, 244-245;

program of enforcement, 246-247.
House of Representatives. See Congress.
Houston, David F., 108.
Howard, Clinton, 131, 243.
Huddleston, George, 90.
Hughes, Charles Evans, 230, 295.

Iceland, 87.

Illicit stills. See Stills.

Illinois, referendums, 221; rural and
urban representation, 228. See also
Chicago.

Indiana, adoption of state law, 19; pro
visions of. law, 21 ; penalties imposed,
156; display of flasks prohibited, 202.

Immigration service, 67.

Industrial alcohol, early case of diver
sion, 60; problem of controlling, 68-69;
increased production of, 115; efforts to
prevent diversion, 116; difficulties
encountered, 116-117; estimates of
diversion, 117-119; new legislation
recommended, 187, 290; use of de-
naturants required, 198; wood alcohol
defended, 198-199, 200; production
figures, 236-237; problem discussed,
262.

Industry. See Economic effects of pro
hibition.

Injunction. See Padlock procedure.

Intoxication, effect of prohibition on,
167-172; arrests by police, 169-170.

Iowa, state law, 21; enforcement of
Volstead Act, 131; canned heat pro
hibited, 202.

Jones Act, 233.

Jones, Wesley L., on time-limit on rati
fication, 31; proposal to extend Vol
stead Act, 81; on threatened boycott,
87; author of Jones Act, 233.

Journal of the American Medical As
sociation, 85.

Judges, proposal to remove, 63. See also
Courts,

Juryless trials. See Trials without jury.

Kansas, state law, 3.
Kelly, M. Clyde, 34.
Kendrick, W. Freeland, 141.
Kentucky, penalties imposed, 156.
Kenyon, William S., 29.

Kitchen stills, 54-55, 70. Set also
Home brew.

Kramer, John F., appointment of, 56;
statements on enforcement, 57, 114,
122-123, 127-128; endorsed by Anti-
Saloon League, 164-165.

Labor, demonstration at Capitol, 46-
47; proposed strike, 47. See also
American Federation of Labor.

Lambert, Dr. Samuel, 86.

Langley, Ernest, 126.

License, state systems of, N 4.

Life insurance policies, 178.

Literary Digest, 224.

Little Rock, 160-161.

Local option, 4.

Louisiana, penalties imposed, 156.

Lowman, Seymour W., 249.

Luxuries, effect of prohibition on, 52.

McAdoo, William G., 270.

McBain, Howard Lee, on trials without
jury, 254; on state responsibility, 274.

McBride, Francis Scott, 231-232.

Maine, state law, 21.

Mandatory prison sentences, 288-289.

Massachusetts, bill to permit wines and
beer, 72; penalties imposed, 156; ref
erendums, 221, 222.

Maxim, Hudson, 176.

Medicinal liquor, drugstores raided, 58;
fraudulent permits, 59; problem of
trolling, 65-66; ruling of Department
of Justice, 84; adoption of Willis-
Campbell Act, 84-86; new legislation
recommended, 111-112, 186.

Mellon, Andrew W., on appropriations,
235; on commercial violations, 250;
on border patrol, 258-259.

Methodist Board of Temperance, Pro
hibition and Public Morals, on pro
gress of enforcement, 82; support of
Andrews program, 189; comment on
press, 217; statements in New York
Times, 219; on 1928 election, 231.

Methodist Church, statement of New
York churches, 88; statement of New
Jersey churches, 143; comment on
press, 217. See also Methodist Board
of Temperance, Prohibition and
Public Morals.

Michigan, state law adopted, 19; pro-

340

Index

visions oflaw, 21, 73; rural and urban

representation, 43.
Mississippi, state law, 21-22; ratifica

tion of Amendment, 39; proposal for

state aid, 58.

Missouri, referendums, 222.
Mitchell, William D., 280, 283.
.Moderation League, Inc., organization

of, 212 ; figures on intoxication, 167-

169; testimony before Congress, 213.
Modification movement, beginning of,

293; growth of, 293-294; status in

Montana, referendums, 222.
Moonshining. See Stills.
Moore, R. W., 90.

Morrow, Dwight W,, on repeal, 296,
299; appeal to temperance leaders,

2 "'.

Mortality statistics. See Health.

Moving pictures, and prohibition, 179.

Mullan-Gage Law, adoption of, 203;
enforcement of, 203-204; results in
New York County, 204-205.

Music, effect of prohibition on, 52.

National Civil Service Reform: League,
on Volstead Act, 94-95; appeal to
President, 106-107.

National Congress of Parents and
Teachers, 244.

Near-beer, regulation of, 66-67, 112-
113; quantity produced, 113.

Nevada, referendum, 221.

New Hampshire, state law, 21.

New Jersey, bill to permit wines and
beer, 72; Bar Association, 214.

New Orleans, 160.

New York City, protest meeting, 46;
illicit stills, 55; police activity, 58;
diversion of alcohol, 60; federal
agents, 125-126; activities of Ein
stein and Smith, 135-137; speak
easies padlocked, 149-150; congestion
in courts, 154; penalties imposed,
156-157; agents dismissed, 161; ar
rests for intoxication, 169; testimony
on conditions, 171-172; Bridge Whist
Club, 194-195; statement of Health
Commissioner, 197; enforcement of
Mullan-Gage Law, 203-205; Bar
Association, 214.

New York Herald Tribune, on Coolidge

order, 191; poll of press, 218; on 1928
campaign, 231.

New York Medical Association, 85.

New York State, rural and urban rep
resentation, 43, 228; bill to permit
wines and beer, 72; federal agents,
126-127; resolution on denaturants,
197; Mullan-Gage Law, 203-205;
referendum, 221-222. See also New
York City.

New York Times* reports of Congres
sional debate, 37-38; on Coolidge
order, 191; prohibition news, 219-220.

Newspaper Enterprise Association, 224-
225.

Newspapers, charged with bias, 216-
217; news of prohibition, 218; edi
torial policy, 218-219.

No Beer, No Work, 47.

Norfolk, Va., poolroom bar, 195.

North Carolina, state law, 22.

North Dakota, state law, 21; referen
dum on repeal, 222.

Nullification, 290-293.

O'Connor, Charles R., 126.

Odegard, Peter, 10.

Ohio, vote on ratification, 44; referen
dum, 221.

Opposition movement, early leadership,
208-210; individual opponents, 210-
21 1 ; organized opposition, 212-214.

Padlock procedure, provisions of Vol
stead Act, 148-149; wide use of
method, 149-150; protests against
* use, 150-151; difficulties encountered,
151-152; change in law recommended,
251, 290.

Palmer, A. Mitchell, on enforcement,
79; on medicinal liquor, 84.

Parker, Richard W., 93.

Patent medicine, 58.

Pauperism, and prohibition, 179.

Pennsylvania, license system, 4; in
dictments for conspiracy, 160; condi
tions in mining towns, 171. See also
Philadelphia.

Pennsylvania Railroad, 215.

Personnel. See Agents.

Philadelphia, enforcement in, 140-144;
arrests for intoxication, 169-170*

Philippines, 81.

Index

Physicians. See Medicinal liquor.

Pinchot, Gifford, 140-141.

"Poison alcohol," charges against gov
ernment, 196-197; government's re
ply, 197-199. See also Industrial al
cohol.

Police, cases of corruption, 159-160;
arrests for intoxication, 169-170; as
enforcement agents, 263-264.

Politics, prohibition issue, 301-303.

Polls. See Referendums.

Portland, Ore., Bar Association, 214.

Presbyterian Church, 200.

Prescriptions. See Medicinal liquor.

Press. See Newspapers.

Prisons, 176.

Prohibition, early history of, 2-5;
growth of movement, 8-11; status
before the war, 17-24; effect of the
war, 25-27, 29-30,^ 34, 36-39, 40-41,
42, 45; debated in Senate, 28-32;
debated in House, 33-36; ratification
of Eighteenth Amendment, 39-47;
Volstead Act adopted, 48-50; ap
pearance of first problems, 53-61;
sources of illicit liquor, 65-71; op
position in urban sections, 71-72;
early attitude of Congress, 76-83;
Willis-Campbell Act; 84-86; state
ments of Presidents, 102-105; prob
lems of enforcement in 1925, 111-121;
drives, 132-134; congestion in courts,
145-148, 153-157; padlock procedure,
148-152; social and economic effects
debated, 158-182; Andrews program,
185-190; Coolidge executive order,
190-193; state legislation, 201-202;
state aid in enforcement, 203-207;
opposition movement, 212-214; at
titude of press, 216-220; referendums
and polls, 221-225; as issue in 1928
election, 229-232; Jones Act adopted,
233; creation of Law Enforcement
Commission, 237-240; appeals for
observance, 243-246, 285-286; Hoover
program, 246-250; first report of
Law Enforcement Commission, 250-
256; problem of illicit stills, 258-264;
responsibility of states debated, 264
-274; appeal for state aid, 275-281;
attitude of Congress, 288-290; nullifi
cation proposed, 290-293; proposals
for modification, 293-296; proposals

for repeal, 296-300; positions in 1930,
300-304.

Prohibition Bureau, organization of,
56; first problems, 65-71; proposed
transfer, 107-108, 251-252; problems
in 1925, in-i2i; early statements on
enforcement, 122-124; reorganiza
tions, 125-128, 289; program in 1926,
186-187; problems in 1929, 236-237;
program in 1929-1930, 247; on lack of
state aid, 277-278.

Prohibition party, organization of, 3;
on lax enforcement, 88.

Proprietary medicines, 58, 65.

Prosperity. See Economic effects of
prohibition.

Public Health Service, 67.

Public opinion. See Referendums,

Purchaser of liquor, 30-31, 288.

Raids, by federal agents, 134-137, 264-
265.

Randall, Charles H., 8r.

Ratification. See Eighteenth Amend
ment.

Reapportionment, 227.

Rebellion, predicted, 300.

Reconstruction Acts, 291, 292.

Reed, James A., 20, 31.

Reed bone-dry amendment, 20,

Referendums, on state laws, 18, 19;
on modification and repeal, 221-222;
on state enforcement laws, 222; un
official referendums, 223-225.

Repeal of the Eighteenth Amendment,
difficulty of, 297; factors favoring,
298; recommended by Smith, 298-
299; recommended by Morrow, 299.

Representation, in state legislatures,
43; in Congress, 227-228.

Republican convention, 59.

Republican party, failure to endorse
Eighteenth Amendment, 72; cam
paign of 1928, 229-231.

"Right of revolution/ 1 255.

Ritchie, Albert C., 272, 273-274.

Roach, Sidney C., 90.

Roosevelt, Franklin D., 241-242.

Roosevelt, Theodore, 26.

Root, Elihu, 209.

Rum Row, problem of, 114; efforts to
disperse, 133. See also Coast Guard
and Smuggled liquor.

342

Index

St. Louis, vote on prohibition, 71; Bar
Association, 214.

St. Paul, 71.

Saloon, 5, 10, 298.

Salvation Army, 171.

San Francisco, Democratic convention,
59; vote on prohibition, 71; padlock
procedure, 149; Bar Association, 214.

Schneider, George J., 158.

Schools, 8.

Search and seizure, 187, 202.

Seizures by federal agents, 119-120,
I35 237 259, 260-261, Appendix G.

Senate. Set Congress.

Senior circuit judges, recommendations
of, 1 08; survey of courts, 253.

Sheppard, Morris, introduction of con
stitutional amendment, 15-16; op
position to Hard wick amendment, 30;
still discovered on farm, 56; on cost
of enforcement, 77; on proposal for
investigation, 98-99; on proposal for
repeal, 297.

Shevlin, James L., 125-126.

Slayden, James L., 34.

Small, John H,, 34.

Smith, Alfred E., campaign for Gover
nor, 37; nominated for President, 229;
proposal to modify Volstead Act,
294; proposal to repeal Amendment,
298-299.

Smith, Moe, 135-137-

Smuggled liquor, Congress warned of
smuggling, 57; problem of controlling,
67-68, 113-115; drives, i33-*34>
border force needed, 186; new legisla
tion recommended, 186-187; increase
reported, 236; closing of border rec
ommended, 258-259.

Sons of Temperance, 2.

South, prohibition sentiment, 211.

South Carolina, dispensary system, 4;
state law, 22.

Southern Baptist Convention, 300.

Spain, 87.

States, prohibition laws before the war,
18-22, 41, 72-73, 257-258; enforce
ment laws adopted, 202; funds ap
propriated for enforcement, 205-206;
lack of support criticized, 206-207;
referendums, 221-222; peace officers,
263; duty under concurrent clause
debated, 267-274; urged to assist

federal government, 274-276; con
tribution to enforcement, 277; prob
lem of enlisting aid, 287-288.

States' rights, debated in Congress,
34-36; effort to revive, 296.

Sterling, Thomas, 95~9&

Stills, seized by agents, 53-55; problem
of controlling, 69-70, 119-121; new
legislation recommended, 187; in
creasing importance, 259-261, 263,
289-290.

Sunday, Billy, I.

Supreme Court, 209, 271, 272-273.

Taft, William Howard, veto of Webb-
Kenyon bill, 14; on transfer of Pro
hibition Bureau, 108.

Temperance, early history of move
ment, 2, 8; decreased consumption of
hard liquor, 12.

Tennessee, state law, 22.

Thompson, William H., 30.

Tinkham, George H., 95^96.

Trials without jury, considered in 1921,
146; proposed by President's com
mission, 252-254.

Under-cover work, purchase of evidence,
193-194; Bridge Whist Club, 194-
195; Norfolk poolroom-bar, 195;
plan for importation, 195; debated in
Congress, 195; defended by Treasury,
196; defended by Anti-Saloon League,
200.

Unemployment, and prohibition, 179-
180.

United States vs. Lanza, 271, 272-273.

United States Brewers' Association,
statement on temperance, 6; brief
on Volstead Act, 209.

United States Commissioners. Set Trials
without jury.

Upshaw, William D., proposal to extend
Volstead Act, 81; on cost of enforce
ment, 87-88; endorsement of Haynes,

165.

Vermont, disclosure law, 202,

Virginia, state law, 21,

Volstead, Andrew J,, introduction of
enforcement law, 48; speech in Con
gress, 77; proposal to extend enforce
ment law, 81.

Index

343

Volstead Act, introduced, 48; debated
in House, 48; debated in Senate,
48-49; vetoed, 49; adopted over
veto, 49-50; effort to repeal, 77;
proposal to extend, 81; provisions for
padlock procedure, 148-149; use of
denaturants required, 198; referen-
dums on modification, 221; amended
by Jones Act, 233; efforts to modify,
293-295.

Voluntary Committee of Lawyers, Inc.,
organization of, 213; on state respon
sibility, 272.

Wagner, Robert F., 254.

War, effect of, 25-27, 29-30, 34, 36-39,
40-4!, 42, 45-

Warren, Francis E., 77.

War-time prohibition, 41, 49.

Washingtonians, 2.

Weapons, use of, 247, 249.

Webb, Atticus, 200.

Webb-Kenyon Law, adopted, 14; ex
periment with, 1415.

Wells, W. Calvin, 58.

West, prohibition sentiment, 21 1.

West Virginia, state law, 22.

Western Union Telegraph Company,
215.

Wheeler, Wayne B., on cost of prohibi
tion movement, 8; on public interest,
n; on Congressional elections, 16, 17;
compilation of state laws, 2022;
on German-American Alliance, 27;
on time-limit in Eighteenth Amend
ment, 32; efforts in behalf of ratifica
tion, 40; on cost of enforcement, 52,
77> 83 ; on medicinal liquor, 84; on alien
violators, 89; quoted on civil service,
96-97; on production of beer, 113;
on diversion of industrial alcohol,
130-131; endorsement of Einstein
and Smith, 137; on line-up in Con
gress, 164, 1 88, 226-227; endorsement
of Haynes, 165; on prohibition and
health, 174; on prohibition and crime,

176; on economic effects of prohibi
tion, 178-179; on difficulty of en
forcement, 185; on use of denaturants,
200; articles in New York Times, 219;
on state responsibility, 270.
Whitman, Charles S., 37.
Wickersham, George W., on Webb-
Kenyon Law, 14; chairman of com
mission, 241; on state cooperation,
241-243; on trials without jury, 254.
See also Commission on Law Enforce
ment and Observance.

Willebrandt, Mabel Walker, 219.

Willis, Frank B., 84, 99.

Willis-Campbell Act, 84-86.

Wilson, Woodrow, 49.

Wine, per capita consumption of, 12;
proposal to exempt from Eighteenth
Amendment, 31; bills to legalize,
294.

Wisconsin, referendum, 221; rural and
urban representation, 227228.

Woman's Christian Temperance Union,
3, 140, 189, 200.

Woman's National Committee on Law
Enforcement, 246.

Women, votes on prohibition, 18.

Women's Committee for Modification
of the Volstead Act, 213.

Women's Committee for Repeal of the
Eighteenth Amendment, 213.

Vfood alcohol, percentage doubled, 197;
use required by Congress, 198; advan
tages as denaturant, 198; use de
fended, 198-199.

Woodcock, A. W. W., 54.

World League Against Alcoholism,
figures on intoxication, 167169; on
police activity, 169170; on cost of
arrests, 179.

World War. See War.

Yellowley, E. C, 127.

Youngquist, G. Aaron, on local officers,

263; on federal enforcement, 280-281,

283.

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